





• l, *» % ,0* 0 
* •* Cy. Vj • 

* o 


«* r^> ^ - 

* <t? ^ • 

<F ** - 



o * a 



,' o * * qO 

.s 

' <jaWao * •^“^ , . \A : iUMi ^ 

/ /\ -S8K- ’ll# /\ 

v - • * jS^ •'V. * 5 A <*'*.»* .0^ ' 

. 0 “ o, *o .& v . n • . <{>. . 0« 0_ "fe, .& v . I <. <s> ~.V O« 0 . 

•-*«*.. - "o a* - "t. C •^5Stvi- a* y^jmZ - ’t, (P .‘-m'* * 



". ^o V 


* J- 0-7 ^ ** 

^ A *0^. ^ 

A? V, 

V *VGlBV. ^ 



. V** * 

«<». O 

^ ^ ° 




* 0 _ 

„CT . o « o . 'h-, *” .4. v . I I . '’*<{> 

.. 0 U O a* % c • 


: \ 

y l % ‘ • •' s? 
v ’’•-' %. <r •• 

,\g & *•-> * 

$ ^ % p c ♦V’^ 


r *0 * 



jv $ ^ • 

A**"** V 

_ 4 •• * * A <v *. 

o °_* 0 ♦ ^O .A’ ,«.»«* <£. 

^ O *f ’’P 

k “ -vs^. "W 



■ "%■ ■& * * 
' Vv * 


“ / 0rf> 

V C^. .0 V ••VL'4, ^ ^ 


O # ^ 


* «^'V. -. 

* # ■>. -* 






^ ^ « o 5 V " >> 

0 N 0 * 4^ 0 t U 


‘^> 9 ..V : ^*A %‘^ f ’V V^‘\A V‘^ 


» \i* 

/ s\ 

-•- s A 

° W G ^ ^O 4 ^ # t * fl ^ 



4^* ^ 

a.--..J^.^ •••'v'* .....-% 





$ 


\A ^ V 

j ■* <£> « ^1J| 

4 ,v * 

A° V. *-A 


u» ^ 


/ V v \ ; .W.* #*% Z -W$&: yv 
sS v - <&*'•-** A X * 

,-JV t * t J_f * ^ .Cr c 0 N ° -* "*b „. / « 

> * JZM(y& -° \p a <. ^sA\n%^ *N * j&tff/Tpz, * 

< r *A ry o /x\ <i> * 

^ o 



■°* ^ 7 ’%o° ^ 

O XT -•••#> ^ 

; 'V* : 

j»° aVV. ° 0 
. ^ ^ ^ * 

A V t * 4\ 

<y • t*« * <$> n v 

^ c° . 6 

-» v^» 0 X 0 

• v°- : . 


* ^ * • 

>° ^° ^ - 


* 


4 o 


o *> ^ 


o N o 


*«?’'&.• $r7fiprf /&" *$• ° V/W*' °i\ J ^UHI^' ° 

<S ;>) * <lY ^ Xv o t v # x9^ s V r . * W* U v£» • s£v^®V# * X 

*° • * * <0^ vD *V^% * /\ ^ **n‘^* A ^ 

^ ^ ^ ° # a\ , XU A Xf '**s s V> 

> O xy o # rvV o N G A> 

<* i ^ *P ^ vJ o ° . * o xy 

* .-*0- K fSyMz^^ * «Pt <* * ^«^ ,, ‘ ♦ 



s 




« O F O 

r > -] 
* -O*' ^*, 


lV ... «. <^-//mx ' i- 0-7 ^- 

* o. &ZW-&* o %. '>' 1 S^ , .‘ j' ^ _ 

,^° ..., V*»"'/ , °* *•<’* -ss> 

^ v >*k £'. ^ A.° V v> 

A r* Tx X^ ^ <» 





A 0 °4> '•** ^0,X^ *0* 

qV o n O ^ ^ A> t , 0 \P V 

0 • ^ „5*C- t ^ /*v C 

”. ’bv 4 +*£ 

. ’ iPtj. » 

•••’•’ ^.0 V* 

**A -lP ^ V (1 ' ' C' 

- -•?, ,' , 4f^5iK^''. •A ,<£■ A" ^ 

° • 
V-^ * 




°^S V 


- - ^HVWVS- ° ^ V 

V ^ t • o- 



1/ > j rj(_ \ jv v 

^ - Y^*' A *^o, * * 4 < 

^b V^ „ t > o <?> Vr 

^ o t ^ _ v> /• o 

<p < N * j3^rfl/7Ph> f rs r v 

^ CP’ ^JSJMP^ 9 *P> 4 

O > b < *V* rV 


• C> £* o 

* ^° ^ » 


^S" ° ^.^ • 

* 6 »M< 

^ ^ ^ »yJWs 

a\* ^ • * * ,0 

V ^ 

v j^/Zv^ -p ^ ^ 

- - ™., VNr *° ^ 0rf - ’. 

<> P M o O " s ,,* 0 

^ V v «* y * c\ *0^ 

« JSa\$J&j'//i, O vJ^ <^V e 

>^. : 


^ V 

: •. 

* : 

,<& ti* ^ °* 

^ * * s * -A vv 

0 ‘"^fik- ° A *£imk. x 

♦ O > 



^ ^ r\ 

^ /.^/^ v v ,«•«. 

V V^fsM^SkV a. • 

\v 



V v 


v - 

f * A ^ * ^^iimli^’ 

<<* ® * «? ^ 
v • kt ^ 4 <lV X*. a 

<b ^ • * 4 <0 ^b yv 

‘ oWO ^ 

* ^ J 

4» 


^ e ' 1 f 0 

v • °- CV * s • • , 

V*- Sty * j 
° <-^> 0 


* .VV 

* V V “. 



1* 


0 & 

• ' 1 ^° X ^ ° N ° \V °st 

c> jy s s V # '-v ^ \/ ^ y • o^ qv s 

*(C0v» 8A° A ♦ C5flB0fc • ^ A 

-^h^. vv 'A 

k ^ V 


f: .* 

■ • XVv 

* V V 

^ .wV ’ V c° .' 

^ VF * a • 


vr ' v ' C * vp^' °^C1^'’ V^ v 

•-WW-' /\ •»• ***%. s Upr ^V . 

rV °** 4 A °U^'** sS A V^ *° • * * VC^ ^O 'v , 

^ C° V * & °^nX °o fc • t jV^ >0^ o“l% 

’V> X oV^M« ^ A *P> 4 s 



V «* Y * °- c\ 

^ ^ /k° Vv A ♦ 


« O 9 

; j.° -v : 

^ o ^*. 


*f 


O M 


* <L^ O ^ t-tsOU^y 

y *p 

V v f cr^ % 

' .*^*. \/ / 



























|?3£f 

iw 


Title 

to Water Powers 
of Navigable 
Rivers in 
Wisconsin 


9 



Do they Belong to 
the State or the 
Riparian? 


Revised 

Brief in Behalf of the 
Riparian Claim 












A contention has arisen respecting the relation 
of the State on the one side, and the riparian on 
the other side, to the water powers of the navig¬ 
able rivers of Wisconsin. 

There ar those who claim that the water pow¬ 
ers, being soveren resources, are owned, and 
should be held, by the State. 

There ar others who claim that, even if the 
riparian does own such water powers yet, he needs 
State action to authorize him to improve the same. 
Hence that the State shoud, if it can, prevent the 
improvement except upon payment of revenue to 
the State. 

This brief has been prepared in the interest of 
the riparian. 




























TITLE TO WATER POWERS OF 
NAVIGABLE RIVERS 


Is the water power of a navigable river in Wis- v 
consin the property of the State or of the riparian? 
It cannot be both. 


RIPARIAN OWNERSHIP. 

COMMON CONSENT. 

It has been uniformly held, since prior to or¬ 
ganization of this State, to be private property, 
and to be owned by the riparian, subject and ser¬ 
vient to the dominant easement of the public for 
uses of navigation, and fishing as incident to navi¬ 
gation. The riparian has been asest on, and paid 
taxes on, its valuation. He has bilt mils of all kinds 
and operated them by its use, under claim of right, 
from the erliest setlment of the State. Such facts 
ar very persuasive. It is a maxim that common 
error makes law. 


RELINQUISHMENT BY STATE. 

If this property in water power of navigable 
rivers was ever the property of this State, subject 
to its control otherwise than by eminent domain, 
—the right to take for public use on making just 


2 


WISCONSIN LEGISLATION 


compensation—this State has, if it cond, turnd it 
over to the riparian by both legislation and judi¬ 
cial decision. 


STATE LEGISLATION. 


It seems that at an erly day some similar ques¬ 
tion arose respecting the relativ rights of the State 
and the riparian to such rivers. Evidently there 
was an attempt to settle the matter by chapter 72, 
laws of 1853. Section 3 provides that, 

4 4 The boundaries of lands adjoining wa¬ 
ters, and the several and respective rights 
of individuals, the State, and its citizens, in 
respect to all such lands and waters, shall 
be determined in conformity to the common 
law, so far as applicable as evidenced by ju¬ 
dicial determinations in other states, in 
which the courts in such cases have adhered 
to its principles. ’ ’ 


Nothing in law is more certain than that at 
common law, waters wer, tide waters which wer 
public and navigable, and non-tide waters which 
wer, some navigable and some non-navigable. It 
was equally setld at common law that the title to 
the beds of tide waters was in the soveren, held in 
trust for the pepl, and the title to the beds and 
water powers of non-tide waters was in the ripar¬ 
ian, subject and servient to the dominant easement 
of the public for uses of navigation, and fishing as 
incident to navigation. 

But it may be asked,—wer the common law 
rules respecting the rights of riparians on non- 
tidal, navigabl rivers then 4 ‘applicable as evi- 


WISCONSIN LEGISLATION 


3 


denced by judicial determinations in other states” 
to our great western rivers? For answer to that 
question, we naturally look to the rule then held 
by the States carved out of the territory northwest 
of the Ohio included in the Virginia cession, and 
for government of which the Ordinance of 1787 
was established. Such States then,—in 1853,—wer 
Ohio, Indiana, Illinois, Michigan and Wisconsin. 


The Court of Final Resort in each of said 
States, other than Wisconsin, had then held such 
common law rule applicabl to such rivers. (1). 


So also had Kentucky, carved out of Virginia 
territory in 1791. (1 U. S. Stat. 189). (2). 


NOTE 1—Blanchard vs. Porter, 11 Ohio, 138 
(Ohio, 1841); 

Gavit vs. Chambers, 3 Ohio, 495, 499 
(Sandusky, 1827); 

Lamb vs. Rickets, 11 Ohio, 311 (Tusca¬ 
rawas, 1842); 

Walker vs. Board of Public Works, 16 
Ohio, 540 (Great Miami, 1847); 

Cox vs. State, 3 Blackford, 193, 198 
(White, 1833); 

Middleton vs. Pritchard, 4 Ill., 509 
(Mississippi, 1842). 

Norris vs. Hill, 1 Mich., 202, 207 
(Huron, 1849); 

Moore vs. Sanborn, 2 Mich., 519 (Pine, 
Jan. 1853). 


NOTE 2—Hart vs. Rogers, 48 Ky., 418, 422-3 
(Kentucky, 1849). 




4 


WISCONSIN LEGISLATION 


So also had Tennessee, ceded by North Caro¬ 
lina in 1790. (3). 

In 1844, the great Chief Justice Sharkey de¬ 
cided the leading case, Morgan vs. Reading. (4). 

Expressing the opinion of the Court that the 
riparian on the Mississippi River owned the bed 
of the stream, he said, 

‘ ‘ It seems that the common law rule ad¬ 
mits of no modification in consequence of 
the magnitude of a river.’’ (403). 

The Mississippi was an interstate boundary 
and by treaty 4 ‘free and open to the subjects oi 
Great Britain and the citizens of the United 
States.” (5). 

The applicability of the common law was thur- 
oly considered. The fact that the stream was sub¬ 
ject to international treaty was not overlooks The 
area of Mississippi was ceded by Georgia on sub¬ 
stantially the same conditions as the cession of the 
territory northwest of the Ohio by Virginia. (1 U 
S. Stat. 649). 


Probably the most authoritativ and generally 
read legal treatise then (in 1853) existing in Amer- 


NOTE 3—Stuart vs. Clark, 32 Tenn., 9, 16-7 
(Nolachucky, 1852). 


NOTE 4—Morgan vs. Reading, 11 Miss., 366 
(1844). 


NOTE 5—Provisional Articles 1782, Art. 4, (8 
Stat. 57); 

Definitive Treaty of Peace, 1783, Art. 4 
(8 Stat. 83). 





WISCONSIN LEGISLATION 


5 


ica was Kent’s Commentaries. Kent said (V. III. 
*427), 

‘ ‘ grants of land, bounded on rivers * * * 
above tide water, carry the exclusive right 
and title of the grantee to the centre of the 
stream, unless the terms of the grant clearly 
denote the intention to stop at the edge or 
margin of the river.” 

He further said in substance that this was the 
rule of all the States except Pennsylvania and the 
two Carolinas (V. III. *429-30-31). 

He further says, 

1 ‘It would require an express exception 
in the grant, or some clear and unequivocal 
declaration, or certain and immemorial us¬ 
age, to limit the title of the owner, in such 
cases, to the edge of the river.” (*428). 

In 1805, as Chancellor, Mr. Kent applied the 
same rule to the Hudson. (6). 


The rule of the Federal Courts was then to the 
same effect. 

In Jones vs. Soulard (65 U. S. 41, 1860), Mr. 
Justice Catron, expressing the opinion of the 
Court, said (65), 

‘ 4 Many authorities resting on adjudged 
cases have been adduced to us in the printed 
argument presented by the counsel of the 
defendant in error, to show that from the 
days of Sir Matthew Hale to the present 
time all grants of land bounded by fresh- 


NOTE 6—Palmer vs. Mulligain, 3 Caines Reports 
308 at 318 (1805). 



6 


WISCONSIN LEGISLATION 


water rivers, where the expressions desig¬ 
nating the water-line are general, confer the 
proprietorship on the grantee to the middle 
thread of the stream, and entitle him to the 
accretions. 

We think this as a general rule too well 
settled, as part of the American and English 
law of real property, to be open to discus¬ 
sion. ’ * 

The great case of the Genesee Chief (7) was 
decided in 1851.* Therein Chief Justice Taney in a 
very lernd opinion, reversing the case of The 
Thomas Jefferson, held that the act of Congress 
(5 Stat. 726) extending admiralty jurisdiction to 
the Great Lakes was constitutional. But he ex¬ 
pressly limited the decision to the effect of the act 
on the admiralty jurisdiction, denying that the de¬ 
cision affected any rule of property. He said 
(458-9), 

“The case of The Thomas Jefferson did 
not decide any question of property, or lay 
down any rule by which the right of prop¬ 
erty should be determined. If it had, we 
should have felt ourselves bound to follow 
it notwithstanding the opinion we have ex¬ 
pressed. For every one would suppose that 
after the decision of this court, in a matter 
of that kind, he might safely enter into con¬ 
tracts, upon the faith that rights thus ac¬ 
quired would not be disturbed. In such a 
case stare decisis is the safe and established 
rule of judicial policy, and should always be 
adhered to. For if the law, as pronounced 


NOTE 7—Propeller Genesee Chief vs. Fitzliugh, 
53 U. S. 443. 



WISCONSIN LEGISLATION 


7 


by the court, ought not to stand, it is in the 
power of the legislature to amend it, with¬ 
out impairing rights acquired under it. But 
the decision referred to has no relation to 
rights of property. It was a question of ju¬ 
risdiction only, and the judgment we now 
give can disturb no rights of property, nor 
interfere with any contracts heretofore 
made. ’ ’ 


The question of the applicability of the com¬ 
mon law rule of ownership of the bed of the stream 
was logically the same as the question of its ap¬ 
plicability to the ownership of the water powers. 
The questions wer twins. 

Hence this statute of 1853 must be interpreted 
in view of this uniform line of judicial decisions. 

This statute continued in force unchangd, until 
the revision of 1878. It was then recast by the re¬ 
visers and appears in the revision of 1878 as sec¬ 
tion 1597, in the following language, 

‘ ‘ The boundaries of lands, adjoining wa¬ 
ters, and the rights of the state and of indi¬ 
viduals in respect to all such lands and wa¬ 
ters shall be determined in conformity to 
the common law, so far as applicable. ’ * 

The revisers state their reason for the omission 
of the words ‘ ‘ as evidenced by judicial determina¬ 
tions in other States, in which the Courts in such 
cases have adhered to its principles, ’ ’ in the recast 
as follows: 

“Sec. 1597. Sec. 3 Ch. 41, R. S. 1858, 
omitting the words which do not limit the 
knowledge of the common law which our 
court has by the want of knowledge of other 
courts . 11 (Revisers Notes p. 124). 


8 


WISCONSIN DECISIONS 


In 1878, at time of adoption of this revision, 
our Supreme Court had repeatedly determined that 
the riparian owner on navigabl rivers took title to 
the river bed, his title extending to the midi thred 
of the stream. (8). 

At the same time the court had decided several 
cases arising out of riparian claims to water pow¬ 
er. In all these cases the court assumed that the 
riparian was the owner of the water power of a 
navigabl river. (See cases cited in Note 10 post.) 
Evidently this recast was made with these deci¬ 
sions in the mind of the revisers. 

How, then, can it be contended that riparians 
who took title to their lands under these Statutes 
do not own, as against the State, the water power 
appurtenant? It seems to me that this Statute di¬ 
rectly asserts the riparian title to the water power. 


STATE DECISIONS. 


An unbroken line of State decisions maintains 
the same rule as this Statute declares, and holds 


NOTE 8—Jones vs. Pettibone, 2 Wis., 308 (Ocon¬ 
to, 1853); 

Walker vs. Shepardson, 4 Wis., 486, 
508 (Milwaukee, 1855-6); 

Mariner vs. Schulte, 13 Wis., 692, 705 
(Milwaukee, 1860); 

Arnold vs. Elmore, 16 Wis., 509, 514 
(Milwaukee, 1883); 

Wis. Riv. Impt. Co. vs. Lyons, 30 Wis., 
61, 64-5 (Wisconsin, 1872); 

Oleson vs. Merrill, 42 Wis., 203, 211 
(Levis Creek, 1877). 



WISCONSIN DECISIONS 


9 


the water powers to be the property of the ripar¬ 
ian. (9). 


By Act of Congress, August 8, 1846 (chapter 
170), land was granted to Wisconsin, in trust, for 
the improvement of navigation of the Fox and 
Wisconsin Rivers. This grant was accepted by 
Wisconsin by act approvd June 29, 1848. By act 
approvd August 18, 1848, the State of Wisconsin 
organizd the Board of Public Works, and formu¬ 
lated a general plan to execute the trust. By sec¬ 
tion 16 of this act, it was provided that 

“Whenever a water power shall be cre¬ 
ated by reason of any dam erected or 
through improvements made on any of said 
rivers, such water power shall belong to the 
State subject to future action of the legisla¬ 
ture. ’ ’ 


By chapter 283, Laws of Wisconsin for 1850, 
provision was made for application of the pur¬ 
chase price of any water power to the construction 
of the improvement. See post. p. 62. 

Here was assumption of title to the water pow¬ 
er by the State, the proceeds to be devoted to pub- 


NOTE 9—G. B. & M. C. Co. vs. Kau. W. P. Co., 
70 Wis., 635 (1888); 

Kimberly & Clark Co. vs. Hewitt, 79 
Wis., 333 (1891); 

West vs. Fox River Paper Co., 82 Wis., 
647 (1892); 

Fox River F. & P. Co. vs. Kelly, 70 
Wis., 287 (1888); 

Kaukauna W. P. Co. vs. G. B. & M. 

Canal Co., 75 Wis., 385 (1890); 
Comr. vs. Little Suamico, 74 Wis., 652 
(1889). 



10 


WISCONSIN DECISIONS 


lie use, the improvement of navigation. No more 
fit public use of proceeds of water powers can be 
imagind. The right of the State to the water 
power as agenst the riparian, came to the test in 
the State Supreme Court in G. B. & M. C. Co. vs. 
Kau. W. P. Co. Therein Justice Lyon said (p. 
652), 

“It is further claimed on behalf of the 
defendants that by locating the south end 
of the dam upon lot 5, building an embank¬ 
ment thereon and on lots 6 and 7, and ap¬ 
propriating the whole water power created 
by the dam, the State took the property of 
the owners of those lots, and that the laws 
of the State made no adequate provision for 
compensating them therefor. A riparian 
owner upon a navigable stream has no 
right, without legislative consent, to build 
a dam across such stream for any purpose. 
Wis. R. Imp. Co. vs. Lyon, 30 Wis., 61. He 
has the right, however, to pass from his 
land to the river, and from the river to his 
land, and to utilize the waters of the river 
upon his land for any purpose not interfer¬ 
ing with the navigation of the stream or the 
rigths of other riparian owners. That the 
construction of the Kaukauna dam and the 
improvement by the State, and its appro¬ 
priation of the water-power thereby cre¬ 
ated, did take the property of the owner of 
lot 5, and deprive him of his riparian rights 
just mentioned (which are also property), 
does not seem to admit of doubt or contro¬ 
versy. Such owner has never been compen¬ 
sated for his property so taken; neither has 
he released his right thereto.’’ * * * 

(654) “But the act of 1848 failed to give 
the land owner the right to institute con- 


WISCONSIN DECISIONS 


11 


demnation proceedings under it to have his 
compensation determined . 9 ’ * * * 

(655) “The failure of the State legisla¬ 
ture to provide adequate compensation for 
private property taken for, or injured by, 
the improvement, has been supplied by the 
act of Congress of 1875, in and by which an 
easy method is provided to ascertain the 
compensation to which the owner of such 
property is entitled, and the United States 
has assumed the payment thereof .’’ * * * 

(656) “Hence, when the act of March 3, 
1875, was passed, compensation was owing 
to the owner of lot 5 for the taking of and 
injury to his property, which is still a valid 
claim against the United States. And this, 
we think, includes any deprivation or inter¬ 
ruption of any legal riparian right. * * * 

It follows, we think, from the views 
above expressed that neither of the defend¬ 
ants had any right whatever to draw water 
from the pond in question, and that the 
plaintiff is the legal owner of the water¬ 
power created by such dam over and above 
what is required for navigation.” 

(658) “The writer ventures to express 
the opinion that there are federal questions 
involved in it which will support an appeal 
to the supreme court of the United States, 
and the desire that such an appeal may be 
taken, to the end that the relative rights of 
the plaintiff and other claimants to water¬ 
power created by the improvement of the 
Fox river, now owned by the United States, 
may be finally determined by that tribu¬ 
nal.” 


Kimberly & Clark Co. vs. Hewitt related to the 


12 


WISCONSIN DECISIONS 


water power of the Fox River. Therein Justice 
Lyon said (337), 

‘ ‘ The rule is elementary that, unless af¬ 
fected by license, grant, prescription, or 
public right, or the like, every proprietor of 
land on the bank of a stream of water, 
whether navigable or not, has the right to 
the use of the water as it is wont to run, 
without material alteration or diminution. ’ ’ 

In West vs. Fox River Paper Company, the 
contention was between opposit riparian owners 
respecting the water power of a public navigabl 
river. There was no intervention by the State. 
Therein Justice Orton said (656), 

“Second. It follows, therefore, that the 
plaintiff is entitled to the natural flow of 
the south channel where his dam is situated, 
for hydraulic purposes, and the whole 
thereof, by reason of his being the owner of 
the island on one side, and of the mainland 
on the other. * * * The full expression of 
the plaintiff’s right to the water-power to 
this extent should be that he is the owner 
of the abutting land, and still owns the ri¬ 
parian rights thereof, or the owner of the 
right of flowage or use of the abutting land 
for the purpose of landing a dam thereon, 
and the owner of the dam built for the pur¬ 
pose of making the water-power at that 
point available.” 

Fox River Flour & Paper Co. vs. Kelley in- 
volvd a contention respecting the rights of ripar¬ 
ians to a water power on the public navigabl river, 
the Fox. Therein Chief Justice Cole says (293), 

“This case involves questions relating 
to riparian rights; and it may be well, at the 
outset, to refer to some elementary doctrine 


WISCONSIN DECISIONS 


13 


which defines or states what these rights 
are. In Head v. Amoskeag Mfg. Co., 113 U. 
S., 9-23, Mr. Justice Gray says: ‘The right 
to the use of running water is publici juris, 
and common to all the proprietors of the 
bed and banks of the stream from its source 
to its outlet. Each has a right to the rea¬ 
sonable use of the water as it flows past his 
]and, not interfering with a like reasonable 
use by those above or below him. One rea¬ 
sonable use of the water is the use of the 
power inherent in the fall of the stream 
and the force of the current to drive mills. 
That power cannot be used without dam¬ 
ming up the water and thereby causing it to 
flow back. ’ In Bates v. Waymouth Iron Co., 
8 Cush., 548-552, Chief Justice Shaw says: 
‘ The relative rights of land-owners and 
mill-owners are founded on the established 
rule of the common law that every proprie¬ 
tor through whose territory a current of 
water flows in its course towards the sea, 
has an equal right to the use of it for all 
reasonable and beneficial purposes, includ¬ 
ing the power of such stream for driving 
mills, subject to a like reasonable and bene¬ 
ficial use by the proprietors above him and 
below him on the same stream. Consequent¬ 
ly, no one can deprive another of his equal 
right and beneficial use by corrupting the 
stream, by wholly diverting it, or stopping 
it from the proprietor below him, or raise 
it artificially so as to cause it to flow back 
on the land of the proprietor above. ’ Chan¬ 
cellor Kent says: ‘Every proprietor of lands 
on the banks of a river has naturally an 
equal right to the use of the water which 
flows in the stream adjacent to his lands, 


14 


WISCONSIN DECISIONS 


as it was wont to run (current solebat), 
without diminution or alteration. No pro¬ 
prietor has a right to the use of the water 
to the prejudice of other proprietors above 
or below him, unless he has a prior right to 
divert it, or a title to some exclusive enjoy¬ 
ment. He has no property in the water it¬ 
self, but a simple usufruct while it passes 
along. Aqua currit et debet currere ut cur- 
rere solebat, is the language of the law. 
Though he may use the water while it runs 
over his land as an incident to the land, he 
cannot unreasonably detain it or give it an¬ 
other direction, and he must return it to its 
ordinary channel when it leaves his estate. 
Without the consent of the adjoining pro¬ 
prietors, he cannot divert or diminish the 
quantity of water which would otherwise 
descend to the proprietors below, nor throw 
the water back upon the proprietors above, 
without a grant, or an uninterrupted enjoy¬ 
ment of twenty years, which is evidence of 
it.’ 3 Kent’s Com. *439. The authorities 
might be multiplied indefinitely which de¬ 
fine the right in substantially the same lan¬ 
guage, but it is unnecessary.” 

Kaukauna Water Power Company vs. G. B. & 
M. Canal Co. presents a contention between the 
riparian owner, Kaukauna Water Power Com¬ 
pany, asserting the riparian title, on the one part, 
and Green Bay and Mississippi Canal Company, 
asserting the title as grantee of the State, on the 
other part, respecting a water power at the Kau¬ 
kauna Rapids below the government dam in the 
Fox River. Therein Justice Cassody says (390), 

4 4 It appears from the complaint that the 
plaintiff, as the riparian owner of the entire 


WISCONSIN DECISIONS 


15 


south bank of the river from the govern¬ 
ment dam down to the channel between that 
bank and island No. 4, and the entire south 
bank of that channel from its mouth to the 
foot of the rapids, including half the bed of 
the stream, and the equal undivided three- 
fourths of the entire shore or bank of island 
No. 4, and of the land under water to the 
center of the channels entirely around the 
same, brings this action for the wrongful di¬ 
version of the waters of the river from said 
lands. 

The rule of law as to the right of a ri¬ 
parian owner, respecting the flow of water 
over his land, is indicated in the authorities 
cited by counsel. The same principle iias re¬ 
cently received direct sanction from the 
House of Lords, as follows: 4 It has now 
been settled that the right to the enjoyment 
of a natural stream of water on the surface, 
ex jure naturae, belongs to the proprietor of 
the adjoining lands as a natural incident to 
the right to the soil itself, and that he is en¬ 
titled to the benefit of it, as he is to all the 
other natural advantages belonging to the 
land of which he is the owner. He has the 
right to have it come to him in its natural 
state, in flow, quantity, and quality, and to 
go from him without obstruction, upon the 
same principle that he is entitled to the sup¬ 
port of his neighbor’s soil for his own in its 
natural state.’ ” 

Conn vs. Little Suamico was an action by a 
navigator 4 ‘ to recover damages for the obstruction 
of a navigable river and the consequent delay in 
the driving of the plaintiff’s logs therein.” There¬ 
in (656) Chief Justice Cole says, 


16 


WISCONSIN DECISIONS 


‘‘For if the right of floatage is para¬ 
mount, so that no bridge or dam or other 
obstruction can be placed in or over the 
stream by the riparian owner, his use and 
enjoyment of his property are unnecessarily 
abridged and restricted. Suppose the ripar¬ 
ian proprietor owns the land on both sides 
of the stream, and there is a water power 
which can be utilized and made valuable by 
means of a dam, can he not construct such 
dam, and utilize his power, providing he 
makes a reasonable provision for the pass¬ 
age of logs through his dam? 

The rights of the riparian owner and of 
the public are both to be enjoyed with due 
regard to the existence and preservation of 
the other. The right of floatage of logs is 
not paramount in the sense that the using of 
the water by the riparian owner for machin¬ 
ery is unlawful so long as he does not ma¬ 
terially or unreasonably interfere with the 
public right; * * * But he may use the 
stream and its banks for every purpose not 
inconsistent with the public use. ’ 1 


Besides the abuv cases in which the State Su¬ 
preme Court has expressly declard the riparian 
to be the owner of the water power of the navi- 
gabl rivers, many other cases hav been adjudgd by 
that Court wherein the contention was between ri¬ 
parian claimants of water powers on such rivers, 
and wherein the riparian ownership was assumd 
by the Court. (10). 


NOTE 10—The Orton-Noonan Cases on Milwau¬ 
kee River, reported in 4 Wis., 335 
(1856); 27 Wis., 272 (1870); 30 



DECISIONS 


17 


Wis., 611 (1872); 31 Wis., 265 
(1872); 31 Wis., 297 (1872); 

Blanchard vs. Doering, 21 Wis., 477 
(Rock) 1867; 

Blanchard vs. Doering, 23 Wis., 200 
(Rock) 1868; 

Samuels vs. Blanchard, 25 Wis., 329 
(Rock) 1870; 

Clark vs. Plummer, 31 Wis., 442 (Wis¬ 
consin) 1872; 

Lawson vs. Mowry, 52 Wis., 219, 235 
(Fox) 1881; 

Valley P. & P. Co. vs. West, 58 Wis., 
599 (Fox) 1883; 

Mack vs. Bensley, 63 Wis., 80 (Wis¬ 
consin) 1885; 

Pioneer W. P. Co. vs. Bensley, 70 Wis., 
476 (Wisconsin) 1888; 

Mack vs. Bensley, 74 Wis., 112 (Wis¬ 
consin) 1889; 

Pioneer W.P. Co. vs. Chandos, 78 Wis., 
526 (Wisconsin) 1891; 

Janesville Cotton Mills vs. Ford, 82 
Wis., 416 (Rock) 1892; 

Jackson Milling Co. vs. Chandos, 82 
Wis., 437 (Wisconsin) 1892; 

Falls Mfg. Co. vs. Oconto R. I. Co., 87 
Wis. 134 (Oconto) 1894; 

G. B. & M. Canal Co. vs. Kau. W. P. 
Co., 90 Wis., 370 (Fox) 1895; 

Appleton P. & P. Co. vs. K. & C. Co., 
100 Wis., 195 (Fox) 1898; 

Koenig vs. Watertown, 104 Wis., 409 
(Rock) 1899. 


18 


NEW YORK DECISIONS 


Outside of Wisconsin, the decisions ar uniform¬ 
ly to same effect. Those presenting contentions 
between private parties ar too numerous for cita¬ 
tion. Hence, those only ar mentioned wherein one 
contestant, directly or indirectly, represented the 
soveren. 


NEW YORK CASES. 

Under the New York canal acts many conten¬ 
tions arose involving the right of the riparian, as 
agenst the State, to the water power of the non- 
tidal navigabl rivers. (11). 


NOTE 11—Exparte Jennings, 6 Cow., 519 (1826); 

Varick vs. Smith, 5 Paige, ch. 137 
(1835); 

Varick vs. Smith, 9 Paige, ch. 547 
(1842); 

Canal Comrs, vs. State ex Rel. Tibbits, 
5 Wend, 423 (1830); 

Canal Comrs, vs. State ex Rel. Tibbits, 
13 Wend, 355 (1835); 

Canal Comrs, vs. State ex Rel. Tibbits, 
17 Wend, 571 (1836); 

Canal Comrs. vs. Kempshall, 26 Wend, 
404 (1841); 

People vs. Canal Appraisers, 33 N. Y., 
461 (1865); 

Chenango Bridge Co. vs. Paige, 83 N. 
Y., 179 (1880); 

Dermott vs. New York, 99 N. Y., 101 
(1885). 



NEW YORK DECISIONS 


19 


Amung them ar the following: 

Ex-parte Jennings. 

This case involvd the right of a riparian to 
compensation for dimunition in value of water 
power by operations of the State in aid of naviga¬ 
tion. Decision was that the riparian was entitld 
to compensation. (528-536). This case was viewd 
as so important that the reporter, Judge Cowen, 
appended to the report a ful synopsis of Sir Math¬ 
ew Hale’s De Jure Maris upon the doctrines of 
which it is supposed to rest. 

Varick vs. Smith and the Attorney General. 

The State had bilt a dam in aid of navigation, 
and had least the incidental power of the surplus 
water not needed for navigation. Contention arose 
between a riparian below the State dam and the 
lessee of the State, defended by the State. The 
riparian asserted his title as such to the power of 
the fall upon his land agenst the lessee of the State 
of the incidental surplus. His claim to water pow¬ 
er as riparian property was sustained by the lernd 
Chancellor Walworth and the diversion of the wa¬ 
ter restrained by injunction. 


This case came to this lernd Chancellor agen. 

He said (9 Paige, 567-8), 

“The patent from the State to Varick 
for blocks 78, 90, 99 and 103 in West Oswe¬ 
go also refers in the same manner to a map 
filed in the office of the Secretary of State, 
which map bounds these blocks on the river 
without restriction. And the complainant 
under that grant was therefore entitled to 
the water and water privileges which were 
naturally connected with those lots.” 


20 


NEW YORK DECISIONS 


Canal Comrs. vs. State ex rel Tibbits. 


This case presented a contention between a ri¬ 
parian on the Mohawk and the State. The riparian 
claimd compensation for the injury to his water 
power by flooding from below. Compensation was 
denied on account that the injury was by opera¬ 
tions in aid of navigation, and that the title to the 
bed of the Mohawk was in the State. The reports 
of this case show elaborate discussion of questions 
relating to riparian ownership of subaqueous lands 
under both common law and civil law, and of the 
relativ interests of the riparian and the State in 
the waters of non-tidal navigable rivers. But there 
was no suggestion by anyone, on either side, on 
either hearing, that the water power of such pub¬ 
lic rivers was not the property of the riparian. The 
scope of the inquiry is suggested by the following. 
In 5 Wend., at 444, Chancellor Walworth says, 

4 ‘This is an important question, involv¬ 
ing not only the claims of those whose mills 
and mill sites have been destroyed by the 
making of the Erie and Champlain canals, 
but also the rights of many other citizens to 
some of the most valuable property in the 
state. Many of our fresh water streams are 
navigable with boats and rafts, and have 
been declared public highways by the legis¬ 
lature, or have become so by prescription, 
and yet the original beds of some of these 
streams, and the banks of most of them are 
occupied by extensive milling and manufac¬ 
turing establishments. The use of a part of 
the bed of the stream is absolutely neces¬ 
sary to the existence of these establish¬ 
ments, but it is probable that not in one case 
in a hundred has the public ever expressly 
granted the lands under the water. It there¬ 
fore becomes our duty to examine this ques¬ 
tion with great caution; and with reference 


NEW YORK DECISIONS 


21 


to the important interests involved in it: for 
if the state has a right to take an unoccu¬ 
pied, and perhaps unimportant mill site, the 
title to which depends upon this principle 
of the common law alone, it may also havq, 
the right to take half a million of property 
from the owners, without compensation, 
which is claimed under a similar title.’ ’ 
(447-8) “The common law made ample 
provision for cases of this kind, by declar¬ 
ing waters thus useful for the purposes of 
commerce public highways. Thus while it 
assigned to the owners of the adjacent lands 
the legal title to the bed of the stream, they 
took it subject to the servitude, or right of 
the public to use the same for the purposes 
of navigation. It is on this principle that 
the people of this state, by their legitimate 
organ, the legislature, constantly exercise 
the power, which formerly belonged to the 
British crown, of declaring those waters 
which are thus navigable, public highways. 
They also have the power to regulate the 
manner of building dams, and other hydrau¬ 
lic erections, so as to preserve this pubilc 
right of navigation; but they have not the 
right to destroy the property of individuals 
for the purpose of making waters navigable 
which are not so by nature, or of appropriat¬ 
ing such waters to the public use by arti¬ 
ficial erections or improvements, except up¬ 
on the constitutional terms of giving to the 
persons injured thereby a fair remuneration 
for their private losses. If, therefore, we 
had no adjudications on this subject in our 
own country, I think we should be bound to 
apply the rule of the common law to the 
case under consideration.” 


22 


NEW YORK DECISIONS 


At 455, Senator Allen says, 

41 Upon this principle, a man’s property 
may be utterly ruined, as in the present 
case, and because nothing is taken, no re¬ 
dress for the damage sustained can be had. 
Suppose the dam in the Hudson had flooded 
the whole of Green Island instead of barely 
ruining the water fall of the defendant, will 
it be tolerated, because nothing was taken 
from the owner, that he must not be re¬ 
munerated for the injury sustained ? It can¬ 
not be. Individual property cannot be taken, 
or, which is the same thing, individual 
rights impaired, for the benefit of the pub¬ 
lic, without just compensation. ’ ’ 

(456) “That the legislature of 1838 held 
the opinion that damage, such as the de¬ 
fendant has experienced, ought to be paid 
by the public, is evident from the act passed 
for the relief of Joseph D. Selden, in a simi¬ 
lar case. Selden had, in 1822, purchased a 
lot of land on the Mohawk river for hydrau¬ 
lic purposes, but the construction of the 
Champlain canal deprived him of all his wa¬ 
ter privileges, and the object of his purchase 
was entirely defeated. Being one of the act¬ 
ing canal appraisers, he could not of course 
decide in his own case, and he accordingly 
applied to the legislature for relief. The re¬ 
sult was, that an act was passed on the 18th 
of March, 1828, authorizing special apprais¬ 
ers to be appointed by the supreme court to 
assess the damage, and directing the comp¬ 
troller to pay the amount to he assessed out 
of the treasury. I am unable to perceive any 
difference between the case of Selden and 
that of the present defendant. They both 
purchased the water privileges for hydrau- 


NEW YORK DECISIONS 


23 


lie purposes, and considered them valuable 
for the uses intended. The rights of each 
are invaded for the same object, namely, the 
construction of a public work from which 
the state is deriving a revenue. They both 
derived title from Van Rensselaer (or those 
from whom they purchased did), and why 
one should be remunerated for the damage 
sustained, and the other not, it is hard to 
say . 9 9 

The syllabus to the report of the final hearing 
of this case, (17 Wendell, 570) shows the deter¬ 
mination of the Court thus, 

“If in the improvement of the naviga¬ 
tion of a public river, the waters of a tribu¬ 
tary stream are so much raised as to destroy 
a valuable mill site situate thereon, and the 
stream be generally navigable, although not 
so at the particular locality of the mill site, 
the owner is not entitled to damages within 
the provisions of the canal laws directing 
compensation to be made for private prop¬ 
erty taken for public use.” 

Canal Comrs. vs. Kempshall arose between the 
riparian claimant to water power and the State 
operating to improve navigation. Therein, the 
Chancellor said (413), 

‘ ‘ That the State was liable for the dam¬ 
ages sustained by the defendant in error in 
the diversion of the waters of the river from 
his mill. He had the right to hold to the 
middle of the stream, and even to erect 
buildings there, if he chose to do so. The 
only restriction upon his right to use the 
bed of the river absolutely as his own, was 
the right of the public to navigate the 
stream . 9 9 


24 


NEW YORK DECISIONS 


Senator Verplanck said (418-419), 

“The complete right to the usufruct and 
enjoyment of those waters for milling, or 

any other purpose to which water or its me¬ 
chanical power is applicable, is appurtenant 
to the ownership of the soil and banks. The 
only limitation to that right is, that the wa¬ 
ters shall not be used, diverted or detained, 
so as to infringe upon the same and equal 
rights of use and enjoyment of other fluvial 
or riparian proprietors. On that ground, 
the defendant is entitled to damages as 
compensation for the injury to his private 
property, sustained for the public use, in 
the construction of an aqueduct for the en¬ 
larged canal.” 


People vs. Canal Appraisers was a contest be¬ 
tween a riparian claiming water power and the 
State operating to improve navigation. Herein 
was held the same rule as in the Tibbits case. But 
nowhere in the elaborate opinion of thirty-seven 
pages is there a suggestion that the water power 
was not the private property of the riparian. 
Judgment went on the ground that such private 
property was subject to the easement of the State 
to improve navigation. 


Chenango Bridge Company vs. Paige, presents 
a contention between a ferry bridg company in¬ 
corporated by the state of New York, with exclu- 
siv authority to bild a bridg within certain limits, 
on the one side, and riparians who bilt a bridg 
within the limits, on the other side. Therein the 
court said, 

“Any person owning the land upon both 
sides of such a river can maintain a ferry or 


NEW YORK DECISIONS 


25 


bridge or dam for his own use provided he 
does it so as not to interfere with the public 
easement, without any authority from the 
legislature, and even in defiance of a legis¬ 
lative prohibition. In such case he would 
but be making a proper use of his property. 
Such use must, however, be such as not to 
interfere with the rights of other riparian 
owners/ ’ 

Dermott vs. the State of New York, involvd in¬ 
directly the title of the riparian to the water power 
as agenst the State. Therein the Chief Justice said 
(106-7), 

“Although the north spout of the Mo¬ 
hawk might be a navigable stream, that fact 
alone did not preclude the lawful acquisi¬ 
tion by McDonald & McIntyre of a mill-site 
and dam thereon, or rebut the presumption 
of ownership arising from the admission of 
that fact, expressly made by the State in the 
recitals of the act of 1822. Even if such 
stream was navigable it was competent for 
the State to grant, and for them to acquire, 
the right to erect a dam thereon, and to 
possess the same as their individual prop¬ 
erty. ’ ’ 


OTHER STATE DECISIONS. (12) 


Walker vs. Board of Public Works, involvd a 


NOTE 12—Walker vs. Bd. Pub. Works, 6 Ohio, 
540 (1847); 

Minnesota vs. Minneapolis Milling Co., 
26 Minn., 229 (1879). 



26 


OTHER STATE DECISIONS 


contention in behalf of a riparian proprietor re¬ 
specting the diminution of his water power by 
operations in aid of navigation. The chief Justice 
said (543-4), 

''In disposing of this subject it is well, 
in the first instance, to consider what are 
the respective rights of the public and ri¬ 
parian owners in the streams within our 
borders, which are in fact navigable. The 
question is not new in this State. It has 
been repeatedly before this court, and the 
rule is this: He who owns the land on both 
banks of such river, owns the entire river, 
subject only to the easement of navigation, 
and he who owns the land upon one bank 
only, owns to the middle of the main chan¬ 
nel, subject to the same easement.—The 
right of the public is merely the right to use 
the water within the channel for the pur¬ 
poses of navigation. The proprietor of the 
lands upon its banks may use the waters of 
the river in any way not inconsistent with 
the public easement, or of private rights, 
and neither the State nor any individual has 
the right to divert the water to his injury. 
The right of the adjacent proprietor to the 
water of the stream is an usufructory right, 
appurtenant to the freehold, not an absolute 
property. Hence the State in its exercise of 
the right of eminent domain can subject the 
waters of such stream to other public uses 
the same as any other private property, by 
making a just compensation for the injury, 
and not otherwise.’’ 

The value of this decision is somewhat im- 
paird by the fact that it was questionabl whether 
the stream was in fact navigabl, altho it had been 
declared navigabl by the legislature. 


OTHER STATE DECISIONS 


27 


State of Minnesota vs. Minneapolis Milling 
Company involvd the taxation of water powers. 
The question was, Wer they real estate or personal 
property? The Minneapolis Milling Company had 
been, by its charter, 

“authorized, for the purpose of the im¬ 
provement of the water-power above and 
below the Falls of St. Anthony, in the Mis¬ 
sissippi River, to maintain the present dams 
and sluices, and to construct dams, canals 
and water sluices, erect mills, buildings or 
other structures, for the purpose of manu¬ 
facturing in any of its branches or improv¬ 
ing any water-power owned or possessed by 
said company, in such manner and to such 
extent as shall be authorized by the direct¬ 
ors of said company.’’ 

The Court says, by Justice Berry (232), 

“The right of a riparian proprietor up¬ 
on a navigable stream, such as the Missis¬ 
sippi, rests, as is held by this court in the 
case above cited, upon the fact of riparian 
ownership; that is to say, the riparian pro¬ 
prietor possesses this right because he owns 
the land upon the bank; and this is equiva¬ 
lent to saying that the right is attached as 
an incident to the riparian land, and be¬ 
longs, and appertains, to the same. * * * 
The defendant is the owner of the bank, 
and of the right to the use of the water, and, 
therefore, of the right to make his right to 
the use of the water available by using the 
bed of the stream. In the defendant’s hands 
the riparian land, and the right to the use 
of the water, and to the use of the bed of 
the stream, are held together. The princi¬ 
pal, which is the riparian land, draws to it 
the incident, which is the right to the use of 


28 


OTHER STATE DECISIONS 


the water so that the latter is part and par¬ 
cel of the former. The defendant's right, as 
riparian proprietor, to the use of the water, 
is not conferred by the provision before 
quoted from its charter. The effect of this 
section is to define the corporate powers of 
the company, and to signify the assent of 
the government to the use of the river, in 
the manner and for the purposes in said sec¬ 
tion mentioned. 

It follows from what we have said that 
the defendant's right to the use of the water 
is, for all purposes of taxation,, real proper¬ 
ty and not personal." 


SOME FEDERAL DECISIONS. (13) 


In Holyoke Water Power Company vs. Con¬ 
necticut River Company, plaintiff was riparian on 
Connecticut River in Massachusetts abuv tide wa¬ 
ter. Defendant was Connecticut corporation or- 
ganizd under legislation of Connecticut to improve 
the Connecticut River. Plaintif sought to restrain 
operations of defendant in aid of navigation in 
Connecticut on account that they injurd its water 


NOTE 13—Holyoke W. P. Co. vs. Connecticut 
River Co., 52 Conn., 570 (1884); 
Same case, 20 Fed. Rep. 71. 

Kau. W. P. Co. vs. G. B. & M. Canal 
Co., 142 U. S. 254 (1891); 

U. S. vs. Great Falls Mfg. Co., 112 U. 
S., 645 (1884); 

Great Falls Mfg. Co. vs. Attorney Gen¬ 
eral, 124 U. S., 581 (1888). 



FEDERAL DECISIONS 


29 


power in Massachusetts. Decree restraining flow- 
age. 

In Kaukauna Company vs. Green Bay and Mis¬ 
sissippi Canal Co., Mr. Justice Brown says (269), 

‘ ‘ The only question involved in this case 
proper for us to consider, is whether the act 
of the legislature of Wisconsin of August 8, 
1848, reserving to the State the water power 
created by the erection of the dam over the 
Fox River, as construed by the Supreme 
Court of the State, and the proceedings 
thereunder, operated to deprive the plain¬ 
tiffs in error of their property without due 
process of law. ’ ’ 

(270) “Second. If the erection of the 
dam and embankment be treated as an as¬ 
sertion of the exclusive right to the water 
power in front of these lots, perhaps the 
maintenance of this dam and embankment 
may be regarded as a continuous depriva¬ 
tion of the rights of the riparian owner to 
such water power, within the meaning of 
the constitutional provision/’ 

(271) “Practically the only question is, 
whether this act was valid in so far as it 
authorized the State to take and appro¬ 
priate the water power in question. 

It is the settled law of Wisconsin, an¬ 
nounced in repeated decisions of its Su¬ 
preme Court, that the ownership of riparian 
proprietors extends to the centre or thread 
of the stream, subject, if such stream be 
navigable, to the right of the public to its 
use as a public highway for the passage of 
vessels/ ’ 

(272) “To what extent he was entitled 
to the use of the water power created by 


30 


FEDERAL DECISIONS 


the dam, as against the public and the other 
riparian owners, may be difficult of ascer¬ 
tainment, depending as it does largely up¬ 
on the number of proprietors, the width and 
depth of the river, the volume of the water, 
the amount of fall, and the character of the 

manufactures to which it was applicable. ’ ’ 

# # # 

(272-3) “The improvement of the navi¬ 
gation of a river is a public purpose, and 
the sequestration or appropriation of land 
or other property, therefore, for such pur¬ 
pose, is doubtless a proper exercise of the 
authority of the State under its power of 
eminent domain. Upon the other hand, it is 
probably true that it is beyond the compe¬ 
tency of the State to appropriate to itself 
the property of individuals for the sole pur¬ 
pose of creating a water power to be leased 
for manufacturing purposes. This would be 
a case of taking the property of one man for 
the benefit of another, which is not a con¬ 
stitutional exercise of the right of eminent 
domain. ’ * * * * 

(276) “So far, however, as land was ac¬ 

tually taken for the purpose of this im¬ 
provement, either for the dam itself or the 
embankments or for the overflow, or so far 
as water was diverted from its natural 
course, or from the uses to which the ripar¬ 
ian owner would otherwise have been enti¬ 
tled to devote it, such owner is undoubtedly 
entitled to compensation. ’’ * * * 

(277) “Inasmuch as the darn abuts upon 
this lot, its owner was doubtless entitled to 
compensation for the land occupied by the 
dam and embankment, as well as for the 


FEDERAL DECISIONS 


31 


value of the use of the water diverted from 
its natural course. ’ 9 

(279) “The question of compensation is 
one separate and apart from the transfers 
of which this property was the subject, but 
one which in honor as well as in law was 
chargeable upon the public.” 


United States vs. Great Falls Mfg. Company 
arose out of the taking by the United States for 
the domestic use of Washington and Georgetown, 
of the waters of the Potomac at a point abuv the 
ebb and flow of tide. The Great Falls Mfg. Co. 
was the claimant, as riparian, of the land and wa¬ 
ter taken which included a water power situate in 
the state of Maryland. 

Great Falls Mfg. Co. vs. United States arose 
out of a taking of similar and connected property 
of the same claimant, situated in Virginia, for the 
same purpose, that is an enlargement of the plant. 

In the course of the first taking in 1863 the 
question of compensation on each one of four plans 
was submitted to arbitration. The arbitrators de¬ 
termined in 1863 that 

“if the United States shall adopt and de¬ 
cide to execute the plan of operations des¬ 
ignated in the specifications and on the plat 
as Dam A, being the first plan of operations 
mentioned in the said specifications, then 
the Great Falls Manufacturing Company 
are legally entitled to the sum of sixty-three 
thousand seven hundred and sixty-six dol¬ 
lars ($63,766) as compensation for the use 
and occupation by the United States of the 
land, water rights, and privileges claimed 
by the said company, and all consequential 


32 


FEDERAL DECISIONS 


damages * * * * upon the condition that the 
said company, as against the United States, 
may lawfully build and maintain a canal 
and bulk-head across and upon the land of 
the United States on the Virginia shore of 
the Potomac * * * so as to use the water of 
the pool above dam A subject to the supe¬ 
rior right of the United States to use the 
water for the aqueduct.” (583-4.) 

The United States then adopted and executed, 
not Plan A, but Plan 4. The later taking was sub¬ 
stantially upon this Plan A. In respect to it, Mr. 
Justice Harlan said (595), 

“It will be remembered that the award 
of 1863 covered four alternative plans for 
the Potomac dam of the Washington aque¬ 
duct. The United States adopted and exe¬ 
cuted only Plan 4, and thereby manifested 
its purpose not to adopt and execute Plan 
A. Neither the Government nor the com¬ 
pany is bound by that award, so far as it re¬ 
lates to plans which the United States did 
not adopt and execute. The present inquiry 
in respect to land or water rights taken 
from the plaintiff must, therefore, be con¬ 
ducted with reference to their value—not in 
1863, when the Government declined to take 
them, but—in 1883, at the time of their be¬ 
ing condemned for public use under the act 
of 1882. It is, consequently, an immaterial 
circumstance that the award of 1863 re¬ 
served to the company, as against the Uni¬ 
ted States, the right to maintain a canal and 
bulkhead across and upon the land of the 
United States, on the Virginia shore of the 
Potomac. No such reservation is made by 
the act of 1882, and the officers charged with 


FEDERAL DECISIONS 


33 


its execution were not required to concede 
any such right, though, of course, the Uni¬ 
ted States are bound to make just compen¬ 
sation to the company for property rights of 
whatever description taken from it for, and 
appropriated to, public use.” 


It has seemed to me that the riparian owner¬ 
ship of the water power was plainly and distinctly 
declared in the Kaunkauna case. (70 Wis., 635; 
142 U. S., 254). Also that it can be taken from the 
riparian for public use only on making just com¬ 
pensation. Respecting the decisions in this case, 
Professor Gilmore in an erlier brief said, 

‘ 4 In this connection it is necessary to dis¬ 
tinguish the case of Green Bay and Missis¬ 
sippi Canal Co. vs. Kaukauna Water Power 
Co., 70 Wis., 635, on which great reliance 
has been placed to prove that the riparian 
rights include the right to the fall of the 
water; that such right is property and can¬ 
not be taken without compensation. The 
court does not decide that the defendant was 
entitled to some compensation for the water 
power. They decide no more than that the 
defendant is entitled to some compensation 
and that the act of 1848 with the act of Con¬ 
gress of 1875 provide adequate provision 
for compensation for all property taken, 
‘And this, we think, includes any depriva¬ 
tion or interruption of any legal riparian 
right. * But the court does not undertake to 
specify what is included within ‘legal ripar¬ 
ian rights.’ ” (pp. 25-6). 


In a later brief he seems to abandon this posi¬ 
tion, and admit that the courts did determin there- 


34 


FEDERAL DECISIONS 


in that the property of th6 riparian which coud not 
be taken without compensation was the water 
power. He now seeks to avoid the force of these 
decisions by claiming that they ar not in point. He 
says (39) that this case 

‘ ‘ does not deny the right of the State to 
take the surplus water power for public use 
without compensation. ’ ’ 

By necessary inference, the constitution for¬ 
bids the taking for any other than a public use. 

But he proceeds to distinguish between differ¬ 
ent kinds of public uses. He says (85-6), 

“It should be noticed further that the 
case deals only with a situation where sur¬ 
plus water power results as an incident to 
the improvement of navigation, which sur¬ 
plus was devoted to private uses; but sup¬ 
pose there had been no surplus water pow¬ 
er; that all the water was needed for the 
public use of navigation or for other public 
purposes? The defendant would none the 
less be deprived of its water power. The 
court does not purport to decide that where 
all the water is needed for the public use of 
navigation or other legitimate public use, 
and a total appropriation for that use takes 
place, that the riparian owner is entitled to 
compensation for the loss of the right to use 
the water for power. There was in fact in 
this case more water than was needed for 
navigation or for any other public purpose, 
and the power resulted from this surplus of 
water. If there had been no surplus, there 
would have been no power. Even granting, 
for the sake of argument merely, that the 
court could on the issues presented have de¬ 
cided that the riparian owner was entitled 


FEDERAL DECISIONS 


35 


to compensation for the loss of water pow¬ 
er, the decision goes no further than recog¬ 
nizing a right to compensation for so much 
of the water or such use thereof as was not 
necessary for the public use of navigation 
and which surplus was turned to private 
uses. In other words, the court does not de¬ 
cide that in the exercise of the public right 
of use of all the water for navigation, com¬ 
pensation must be made to the riparian 
owners for the loss of the use of the water 
for power. Nor does the court decide that if 
the surplus had been used for public pur¬ 
poses, compensation would have been neces¬ 
sary to the riparian owner. ’ ’ 

The taking in this case was justified on the 
ground that the otherwise private use, being neces¬ 
sarily commingled with the public use, became, by 
such commingling, a public use. Such is the well 
setld rule of law. (13a). 


NOTE 13a—Att’y Gen. vs. Eau Claire, 37 Wis., 
400, 435; 

State vs. Eau Claire, 40 Wis,., 533, 
541-2-3; 

Hubbard vs. Toledo, 21 0. St., 496; 

Malone vs. Toledo, 34 0. St., 541; 

Water Works Co. vs. Buhkhardt, 41 
Ind., 364; 

Cronne vs. Canal Co., 71 Ind., 208, 

211 ; 

Wyoming Coal Co. vs. Price, 81 Pa. 
St., 156; 

Dingley vs. City of Boston, 100 Mass., 
544, 559; 

Heyward vs. Mayor of New York, 7 
N. Y., 314, 325; 



36 


FEDERAL DECISIONS 


But Mr. Gilmore takes the position that while 
the taking for the public use, of navigation, on ac¬ 
count of the necessary commingling, entitles the 
riparian to compensation as adjudgd, the taking 
for another kind of public use—to-wit, running a 
municipal lighting plant—would not entitle the 
riparian to compensation. 

The taking is for the purpose of navigation, tho 
the use of the surplus may be to furnish power to 
a factory. The use does not determin the purpose. 
Otherwise there coud be no taking. The puprose 
is the main thing. The use of the surplus a collat¬ 
eral. 


In Heyward vs. Mayor, the purpose was for 
an almshouse under an act authorizing the con¬ 
demnation of the fee. The almshouse was discon¬ 
tinued. The city platted the lands and sold the 
lots. The Court held that the public use for an 
almshouse justified the taking of the fee and that 
the later use was incidental to the taking. 

In Dingley vs. Boston, the taking was for the 
public purpose of abating a nuisance by filling 
overflowed lands in the Back Bay. Held that the 
fee might be taken and that the incident, the filled 
land, having become the property of the city, 
might be used for business purposes. 


Rexford vs. Knight, 11 N. Y., 308, 
314; 

Spaulding vs. Lowell, 23 Pick., 71, 80; 
George vs.- School Dist., 6 Mete. 497, 
510; 

French vs. Quincy, 3 Allen, 9, 12, 13; 
Railroad vs. Davis, 2 Dev. & R. (N. 
C.) L. 451. 



ADMISSION 


37 


Mr. Gilmore says (62), 

‘ ‘ If the riparian owner within the limits 
of his own land can get a sufficient fall of 
water to turn the machinery without en¬ 
croaching upon the reciprocal rights of oth¬ 
er riparian owners or encroaching upon the 
rights of the public, whatever they may be, 
a water power is part of the riparian es¬ 
tate.’ : ’ 

It can hardly be claimed in view of the cases 
cited in note 25 herein that in the absence of 
section 1596 prohibiting dams in navigabl rivers 
without authority of the legislature, the riparian 
owner on a public navigabl river, owning both 
banks and the bed of the river, coud not bild a dam 
not interfering with navigation. If so, according 
to Mr. Gilmore, if he coud 

“get a sufficient fall of water to turn the 
machinery without encroaching upon the re¬ 
ciprocal rights of other riparian owners or 
encroaching upon the rights of the public, 
whatever they may be, ’ ’ then 1 4 a water pow- 
er is part of the riparian estate. ’ ’ 

This ability to create a water power as “part 
of the riparian estate’’ certainly is private prop¬ 
erty which cannot be taken from the riparian ex¬ 
cept for public use, and then only upon just com¬ 
pensation. Hence, so far as Section 1596 prohibits 
the bilding of a dam, not interfering with naviga¬ 
tion, by the riparian to render his water power 
availabl, it must be unconstitutional and void. 

Evidently no such prohibition was intended. 
Evidently the provision is intended as a police 
regulation to protect navigation. Hence, any legis¬ 
lation authorizing the riparian to dam any public 


38 


TIDE WATER POWER 


stream for power purposes, but giving no right of 
eminent domain, does not confer a franchise, but is 
simply in the nature of a license. It is practically 
nothing more than a certificate that the proposed 
dam, bilt as conditiond, wil not interfere with 
navigation. It is equivalent in law, and of same 
nature, as a bilding permit in a city. 

But does Mr. Gilmore answer that one condi¬ 
tion upon which “the water power is part of the 
riparian estate” is that the riparian in making 
same availabl must not encroach “upon the rights 
of the public, whatever they may be” and that the 
right to use the water for power is one of the 
“rights of the public” upon which he must not en¬ 
croach t If that is the answer, it resolves the entire 
statement abuv quoted into vacuity. It makes it 
equivalent to saying that the riparian may make 
“a water power * part of the riparian estate” if 
he can do so without using the water power which 
is “one of the rights of the public.” In other 
words, the riparian can make “a water power * 
part of the riparian estate ” if he can. But he can¬ 
not because it belongs to the public. 

TIDE WATER POWER 

It seems that the power of tide water has been 
used by the riparian as his private property. (13b) 

The French Canadian common law seems to 
vest the water power in the riparian. (13c) 


NOTE 13b—Urch vs. Portsmouth, 69 N. H., 162 
(1890); 

Murdock vs. Stickney, 62 Mass., 
113,116(1851): 

Stout vs. Millbridge, 45 Me., 77 
(1858). 

NOTE 13c—Miner vs. Gilmour, 12 Moo. P. C., 
131, 156-7; 14 E.R.Rep.,861(1858). 



ABSTRACT 


39 


STATE CLAIM. 


Claim is made 

That, on admission of Wisconsin into the 
Union, it became, unquestionably, the owner as of 
soveren right, of the navigabl rivers and of every 
right therein, public or private. 

That the water powers passed to the State on 
account that they were incdient to, and parcel of, 
the subaqueous lands. 

That altho the State has relinquishd the river 
beds of navigabl rivers to the riparian, such re¬ 
linquishment did not carry the water powers be¬ 
cause it held them as soveren, in trust for public 
use for all the pepl, under the rule in Illinois Cen¬ 
tral vs. Illinois (142 U. S., 387), and numerous 
other cases to same effect. 

That its title to such powers is analogous to its 
right to use public waters for navigation and fish¬ 
ery. 


ABSTRACT. 


Whatever title or interest the State may have 
in or to any property, private or governmental, in 
the State, must hav cum to the State from and thru 
the United States. The title of the United States 
in such property must hav cum from and thru the 
deed of Cession by the State of Virginia. In 1780, 
the State of Virginia claimed title to the territory 
northwest of the Ohio and east of the Mississippi, 
including the states of Ohio, Indiana, Ililnois, 
Michigan and Wisconsin, and the Eastern part of 
Minnesota. This claim was practically conceded 
by the United States, so far as related to the space 


40 


ABSTRACT 


now comprising Wisconsin and Michigan, tho 
some portions of such territory wer claimed by 
other of the original thirteen states. 

Feeling the burden of the public det and the 
difficulty of adjusting divers claims to the unin¬ 
habited territory claimed by the various States, 
the United States on the 10th of October, 1780, re¬ 
solved, 

“That the unappropriated lands that 
may be ceded or relinquished to the United 
States, by any particular State, pursuant to 
the recommendation of Congress of the 6th 
day of September last, shall be disposed of 
for the common benefit of the United States, 
and be settled and formed into distinct re¬ 
publican States, which shall become mem¬ 
bers of the Federal Union, and have the 
same rights of sovereignty, freedom and in¬ 
dependence, as the other States: * * * 

That the said lands shall be granted or 
settled at such times, and under such regu¬ 
lations, as shall hereafter be agreed on by 
the United States, in Congress assembled, 
or any nine or more of them.” 

Pursuant to this resolution, the State of Vir¬ 
ginia, by act January 2, 1781, submitted a propo¬ 
sition for the Cession of her western lands. This 
proposition was by act of Congress, September 13, 
1783, accepted. Virginia, by act October 20, 1783, 
authorized her delegates in Congress to make a 
deed of Cession. On March 1, 1784, the Virginia 
delegates tendered a deed of Cession of lands in¬ 
cluding the present states of Wisconsin and Michi¬ 
gan, purporting to 

“convey, transfer, assign, and make 
over, unto the United States in Congress as¬ 
sembled, for the benefit of the said States, 


ABSTRACT 


41 


all right, title, and claim, as well of soil as 
jurisdiction, which this Commonwealth 
hath to the territory or tract of country 
within the limits of the Virginia charter, 
situate, lying and being, to the northwest of 
the river Ohio, * * * upon condition 

that the territory so ceded shall be laid out 
and formed into States, * * * having 

the same rights of sovereignty, freedom, 
and independence, as the other States. * * * 
That all the lands within the territory so 
ceded to the United States * * * shall 

be considered as a common fund for the use 
and benefit of such of the United States as 
have become or shall become members of 
the Confederation of federal alliance of the 
said States, Virginia inclusive, according to 
their usual respective proportions in the 
general charge and expenditure, and shall 
be faithfully and bona fide disposed of for 
that purpose, and for no other use or pur¬ 
pose whatsoever/’ 

This deed of Cession was accepted. 

Later there was some slight modification of the 
grant, not material to the question at issue, where¬ 
in it was recited that the states to be formed from 
this territory 

‘ 4 shall hereafter become members of the 
Federal Union and have the same rights of 
sovereignty, freedom and independence as 
the original states, ’ ’ 

This modification included the ratification by 
Virginia of the Ordinance of July 13, 1787, for the 
government of the territory northwest of the 
Ohio. 


By act approved April 20,1836 (5 Stat. ch. 54), 


42 


ABSTRACT 


Congress established the territorial government of 
Wisconsin and provided by section 6 thereof that 

“No law shall be passed interfering with 
the primary disposal of the soil. ’ ’ 

By act approved August 6, 1846 (9 Stat. ch. 
89), Congress authorized the pepl of the Territory 
of Wisconsin 

“to form a constitution and State gov¬ 
ernment for the purpose of being admitted 
into the Union on an equal footing with the 
original States in all respects whatsoever.’’ 

This enabling act, sec. 7, sub. 5, provided, 

‘ ‘ That five per cent, of the net proceeds 
of sales of all public lands lying within the 
said State, * * * shall be paid to the 

said State for the purpose of making public 
roads and canals in the same as the Legis¬ 
lature shall direct: Provided, that the fore¬ 
going propositions herein offered are on the 
condition that the said convention which 
shall form the constitution of said State 
shall provide, by a clause in said constitu¬ 
tion, or an ordinance, irrevocable without 
the consent of the United States, that said 
State shall never interfere with the primary 
disposal of the soil within the same by the 
United States, nor with any regulations 
Congress may find necessary for securing 
the title in such soil to bona fide purchasers 
thereof;” 

On February 1st, 1848, the constitution of the 
State of Wisconsin was adopted. Pursuant to this 
provision of the enabling act, the constitution, ar¬ 
ticle II, section 2, provided that 

“The propositions contained in the act 
of Congress are hereby accepted, ratified 


ABSTRACT 


43 


and confirmed and shall remain irrevocable 
without the consent of the United States; 
and it is hereby ordained that this State 
shall never interfere with the primary dis¬ 
posal of the soil within the same by the 
United States, nor with any regulations 
Congress may find necessary for securing 
the title in such soil to bona fide purchasers 
thereof; ’’ 

By act of Congress approved May 29, 1848, 
Wisconsin was 

“ admitted into the Union on an equal 
footing with the original States in all re¬ 
spects whatsoever. ’ ’ 

It was further provided by said act that 

‘ ‘ The five percentum of the net proceeds 
of the public lands therein mentioned shall 
be held and disposed of by said State in the 
manner and for the purposes recommended 
by said convention.’ ’ 


The salient points in this ab- 
Salient Points. stract of title ar that the states 
to be formed out of the North¬ 
west Territory shall be admitted into the Union 
“ having the same rights of sovereignty, freedom 
and independence as the other states’’ or “the or¬ 
iginal states” on the one side, and on the other 
side, “That all the lands * * * shall be con¬ 

sidered as a common fund for the use and benefit 
of such of the United States as have become, or 
shall become, members of the Confederation or 
Federal Alliance of the said States, Virginia inclu¬ 
sive, according to their usual respective propor¬ 
tions in the general charge and expenditure, and 
shall be faithfully and bona fide disposed of for 


44 


ABSTRACT 


that purpose, and for no other use or purpose 
whatsoever.’ ’ 

To protect itself agenst State action in hostil¬ 
ity to the execution of this trust, the United States 
requird the assurance that Wisconsin woud 
“ never interfere with the primary disposal of the 
soil.” This indicates the importance of the trust 
in view of the United States. 

This bargain between Virginia and the United 
States must be construed in view of the then con¬ 
ditions, and the then views, respecting soverenty 
on the one side, and property, water power prop¬ 
erty, on the other side. If the right to use the flow 
of a non-tidal, navigable river was then, accord¬ 
ing to common understanding, property—if the 
Courts woud then hold it to be property—parcel 
of the riparian estate, then the State never owned 
it, or any interest in it except as a member of the 
Federation, and the right to take for public use on 
making just compensation. But if the Court woud 
then hav held it to be a soveren right, it passed to 
the State by the Virginia deed of Cession and the 
enabling act. 

In answer to this, Professor Gilmore says 

( 61 - 2 ), 

“The contention is undoubtedly true 
to the extent that the United States has re¬ 
tained full control of the primary disposi¬ 
tion of non-submerged lands, and that the 
title to up-lands is derived from the Federal 
patents. As already pointed out, however, 
the Federal courts have uniformly held 
that the patents confer no rights beyond 
the meander line and whatever rights the 
pantentee gets beyond that line, either in 


ABSTRACT 


45 


the submerged lands or the right to use 
the water is to be determined by the 
law of the state in which the land is 
located. While it is true that riparian 
rights are parcel of the riparian or bank 
estate, the scope and content of the riparian 
rights are dependent upon corresponding- 
rights in other riparian owners and upon 
certain rights in the public. Whether the ri¬ 
parian right included a water power de¬ 
pended, as has been shown, upon the natural 
physical conditions of the stream, which de¬ 
termined whether the water could be turned 
to this use without encroaching upon the 
property or rights of others, and depended 
further upon the extent to which the public 
had a right to use the water. As the law 
stood in 1784, the date of the Virginia Ces¬ 
sion, whether a water-power was parcel of 
the riparian estate would be determined by 
the same general conditions as exist to-day. 
It is not possible to assert dogmatically that 
a water power, at a particular point in time, 
is or is not a part of the riparian estate. It 
may, or may not be, depending upon circum¬ 
stances. That was true in 1784 and it is true 
to-day. If the riparian owner within the 
limits of his own land can get a sufficient 
fall of water to turn the machinery without 
encroaching upon the reciprocal rights of 
other riparian owners or encroaching upon 
the rights of the public, whatever they may 
be, a water power is part of the riparian es¬ 
tate. But his right is controlled by the cor¬ 
relative rights of other riparians and the 
paramount right of the public. The line be¬ 
tween public rights and private rights was 
no more sharply drawn in 1784 than now. 


46 


ABSTRACT 


The classification of waters into public and 
private was a part of the common law of 
England and Virginia in 1784, and it was 
recognized that the scope of the riparian 
right was narrower with respect to lands 
bordering on public waters than lands bor¬ 
dering on private waters. To what extent 
the scope of the riparian right on public wa¬ 
ters would be restricted by the exercise of 
public rights would necessarily have to be 
left to be determined by the development of 
the law with respect to the scope of public 
rights and activities in general. ’ ’ 

It is true that 

“It is not possible to assert dogmatically 
that a water power, at a particular point in 
time, is or is not a part of the riparian es¬ 
tate. ’ ’ 

But the most authoritativ interpretation of a 
document, other things being equal, is that made 
nearest in time and place to the making of the 
document. The nearer to the use of the words in 
time or place the more akin to the spirit of the 
words. 

Also interpretation is especially valuable when 
it is agenst the interest of the interpreter. 

In which class was the water power then un¬ 
derstood to be? At about the time of the Virginia 
Cession, that is in 1786, a treaty was concluded be¬ 
tween New York and Massachusetts presenting 
substantially the same question. This treaty came 
up for judicial interpretation in 1841 and agen in 
1883. (14). 


NOTE 14—Commissioners vs. Kempshall, 26 
Wend., 404, 420 (1841); 

Smith vs. Rochester, 92 N. Y., 463, 476 
(1883). 



ABSTRACT 


47 


In Smith vs. Rochester, the Court says (476), 
“The ownership and jurisdiction over 
the lands in the southwestern part of the 
State in which Hemlock lake is located, 
were, in the earlier history of this country, 
subject of much controversy between the 
sovereign States of Massachusetts and New 
York. These differences were finally adjust¬ 
ed by a treaty executed between the respect¬ 
ive States, in December, 1786, whereby the 
State of New York did cede, grant, release 
and confirm to the said Commonwealth of 
Massachusetts, and to the use of the Com¬ 
monwealth, their grantees and the heirs and 
assignees of such grantees forever, the right 
of pre-emption of the soil from the native 
Indians, and all other the estate, right, title 
and property (the right and title of govern¬ 
ment, sovereignty and jurisdiction except¬ 
ed), which the State of New York hath, of, 
in or to, the lands in question; on the other 
hand, the State of Massachusetts ceded to 
New York all claim to the government, sov¬ 
ereignty and jurisdiction of the lands de¬ 
scribed.” 

The contention was between riparian owners of 
water power on Honeoye Creek, the outlet of Hem¬ 
lock Lake, on the one side, and the City of Roches¬ 
ter taking water from Hemlock Lake under the 
authority of the legislature of New York for pub¬ 
lic purposes, on the other side. Chief Justice Ru- 
ger pronounced the opinion of the Court and in 
such opinion said respecting the treaty provisions, 
“Subsequent to this treaty there re¬ 
mained in the State of New York only such 
rights of property in these lands as neces¬ 
sarily pertained to its sovereignty and were 


48 


ABSTRACT 


inalienable by the sovereign. All such rights 
of property in or to the territory in dispute 
as could, by the most comprehensive and ab¬ 
solute conveyance, be granted to another 
were, by this treaty, conferred upon the 
Commonwealth of Massachusetts and its 
grantees. * * * The settlers in this ter¬ 

ritory derive the title to their lands from the 
Commonwealth of Massachusetts and have 
become possessed of all of the rights which 
that state acquired in such lands by virtue 
of the treaty of cession or otherwise. 

It now remains to consider the nature of 
the rights of property which pertain exclu¬ 
sively to sovereignty and which do not pass 
to the grantee under a conveyance of the 
soil bordering upon and adjoining fresh¬ 
water navigable lakes and rivers.” 

The opinion then proceeds to assert the right 
of the riparian to restrain the city of Rochester 
from withdrawing water from Hemlock Lake, 
which was a part of the navigable waters of New 
York, and thereby reducing the volume of the flow 
in the Honeoye Creek and impairing the water 
powers of the riparians thereon. The decision is 
put upon the ground that the use of this public wa¬ 
ter for power was a property right vested in Mas¬ 
sachusetts by the treaty and not a soreven right 
vested in New York. 

In Commissioners vs. Kempshall, the conten¬ 
tion was respecting the interference by the State, 
in the interests of navigation, with the right of the 
riparian owner to water power. The riparian 
claimed title under the state of Massachusetts thru 
the treaty. Chancellor Walworth said (413), 

“that the State was liable for the dam- 


ABSTRACT 


49 


ages sustained by the defendant in error in 
the diversion of the waters of the river from 
his mill. He had the right to hold to the mid¬ 
dle of the stream, and even to erect build¬ 
ings there, if he chose to do so. The only 
restriction upon his right to use the bed of 
the river absolutely as his own, was the 
right of the public to navigate the stream.’ ’ 

Senator Verplanck said (420), 

‘ 4 Under the compact of 1786, which set¬ 
tled the long controversy between New 
York and Massachusetts, concerning the ti¬ 
tle to a large portion of Western New York, 
this State, by formal deed, ‘ceded, granted, 
released and confirmed to Massachusetts all 
the estate, right, title and property, (the 
right of government sovereignty and juris¬ 
diction excepted) which the former had to a 
large territory, comprising the whole tract 
of country through which the Genesee runs, 
from its source to where it flows into Lake 
Ontario. ’ By a legislative act of Massachu¬ 
setts, the territory was, in 1778, granted to 
Phelps and Gorham, and became, in every 
sense, private property. By the very letter 
of the compact and grant, the whole bed of 
the Genesee passed as so much land under 
water, comprehended in the granted terri¬ 
tory. The usufruct of water flowing over it 
is a part of, and incident to, the fee. There 
was no exception or saving in the grant, ex¬ 
cept that of ‘government, sovereignty and 
jurisdiction. ’ The title to the river, then, 
must have passed just as fully as the title 
to the lands formerly under water about the 
island of Manhattan or in the bay of New¬ 
burgh, now covered by wharves and piers. 


50 


ABSTRACT 


The reservation of the privileges appurte¬ 
nant to sovereignty could no more involve 
the continued property in the waters in the 
one case than in the other. The public rights 
of navigation are, indeed, under the trust 
and authority of the State, and these are 
easements or servitudes which the State is 
bound and empowered to preserve and pro¬ 
tect as a trustee for its citizens. ’ ’ 


Suppose a water power, or foundation for a 
water power, to now exist on land not entered. 
Does the State own it on account of its soverenty, 
or does the United States own it in trust for the 
benefit of all the states ? 

If the United States shoud secure a large price 
on sale of riparian land, on account of the water 
power appurtenant to the same, who would receiv 
the purchase price? 

That the water powers remained property of 
the United States, and passed by its grant to the 
riparian, has been the uniform opinion of Federal 
and State Courts and Federal and State legisla¬ 
tures from the erliest setlment of the country to 
this time. See some of the State and Federal de¬ 
cisions and legislation hereinbefore referd to, and 
very many decisions between private parties in 
other states, and legislativ acts of Wisconsin and 
other States and the United States. They ar too 
numerous to mention. 

See also the Sault case, (post 67-8-9.) 

See also United States vs. Rio Grande Irriga¬ 
tion Company (174 U. S. 690) wherein (703), Mr. 
Justice Brewer said, 

“ First, that in the absence of specific au- 


ABSTRACT 


51 


thority from Congress a State cannot by its 
legislation destroy the right of the United 
States, as the owner of lands bordering on 
a stream, to the continued flow of its waters; 
so far at least as may be necessary for the 
beneficial uses of the government proper¬ 
ty/ 1 ’ 


52 


BANK RIGHT 


INCIDENT TO BANK, NOT TO BED. 

Riparian rights, including right to water pow¬ 
er, pertain to the hank, and not to the bed, of the 
stream. It is, as its name implies, a riparian or 
bank right. (15). 


NOTE 15—Diedrich vs. Railroad Company, 42 
Wis., 248 (1877); 

Fox River Paper Company vs. Kelley, 
70 Wis., 287, 294-5, 298 (1887); 

Lyons vs. Fishmongers L. R., 10 Ch., 
679; Same Case, L. R. 1 App. Cas., 
662 (1876); 

Canal Appraisers vs. The People, 17 
Wendell, 571 (1836); 

People vs. Tibbits, 19 N. Y., 523 
(1859); 

Brisbine vs. Railway, 23 Minn., 114 
(1876); 

Carli vs. Railway, 28 Minn., 373 
(1881); 

State vs. Milling Co., 26 Minn., 229 
(1879); 

Canal Comrs. vs. Kempshall, 26Wend., 
404, 418-9 (1841); 

Walker vs. Board of Public Works, 16 
Ohio, 540 (1847); 

Morrill vs. St. Anthony’s Falls, 26 
Minn., 222 (1879); 

Minnesota vs. Minneapolis Milling Co., 
26 Minn., 229 (1879); 

United States vs. Ch. D. W. W. P. Co., 
152 Fed. 25 (1907); 

United States vs. Ch. D. W. W. P. Co., 
206 U. S. 447 (1908); 

G. B. & M. C. Co. vs. Kau. W. P. Co., 
70 Wis., 635, 653 (1888); 



BANK RIGHT 


53 


Minnesota holds title to beds of navigable riv¬ 
ers to be in the State and not in the riparian. Hav¬ 
ing this fact in view read quotation (ante 27-8) 
from State of Minnesota vs. Milling Company. 

Kent says, 

“ Important questions have arisen in re¬ 
spect to the use of running waters, between 
different proprietors of portions of the same 
stream; and such questions are daily grow¬ 
ing in interest, as the value of water-power 
is more and more felt in manufacturing es¬ 
tablishments. 

Every proprietor of lands on the banks 
of a river has naturally an equal right to the 
use of the water which flows in the stream 
adjacent to his lands, as it was wont to run, 

* * without diminution or alteration. * 

* * * Though he may use the water 

while it runs over his land as an incident to 
the land, he cannot unreasonably detain it, 
or give it another direction, and he must 
return it to its ordinary channel when it 
leaves his estate.” 


K.-C. Co. vs. Hewitt, 79 Wis., 334, 337 
(1891); 

Wilts & Bukrs vs. Swindon, L. R. 9 
Ch. App. Cas. 451 (1874); 

Lewis Em. Horn. Sec. 61b, p. 74, Yol. 1. 
Coulson & Forbes, 62-3-4. 

Coulson & Forbes, 110-1-2. 

Kents Com., 11th Ed., Y. 3, *439; 
Gould on Waters, Sec. 148; 

Farnham on Waters, Y. IT., Sec. 463, 
pp. 1568-9,1570. 



54 


BANK RIGHT 


Gould says, 

“The distinction between tide waters 
and fresh, or between public and private 
waters, is not necessarily a material consid¬ 
eration in determining questions relating to 
riparian rights, since riparian rights proper 
depend upon the ownership of land contigu¬ 
ous to the water and are the same whether 
the proprietor of such land owns the soil 
under the water or not. ’ ’ 

Then he quotes from Lord Selborne in Lyon vs. 

Fishmongers’ Co., 

‘ ‘ The rights of a riparian proprietor, so 
far as they relate to any natural stream, ex¬ 
ist jure naturae, because his land has by na¬ 
ture the advantage of being washed by the 
stream; and if the facts of nature constitute 
the foundation of the right, I am unable to 
see why the law should not recognize and 
follow the course of nature in every part of 
the same stream. With respect to the own¬ 
ership of the bed of the river, this cannot be 
the foundation of riparian rights properly 
so called, because the word ‘riparian’ is rel¬ 
ative to the'bank, and not to the bed of the 
stream. ’ ’ 

Farnham says, 

“The right of the riparian owner is a 
natural right and depends upon the fact 
that the stream is furnished him by nature. 
* # ru j e - g we q in Samp¬ 

son vs. Hoddinott, where it is said all per¬ 
sons on the margin of a flowing stream have 
by nature certain rights to use the water of 
the stream whether they exercise these 
rights or not, and they may begin to exer- 


BANK RIGHT 


55 


cise them whenever they will. * * * The 

right depends, not upon ownership of the 
soil over which the water flows, but upon 
lateral contact with the water. ’’ 

The only water power of a non-tidal navigabl 
river which has been held not to be the property 
of the riparian (except in case of special reserva¬ 
tion) is the Niagara power. It has been held in 
the inferior courts of New York that this power 
belongd to the State. (16). 

The decision was based on the ground that the 
Niagara, being an international river, the State, 
and not the riparian, owned the bed thereof. Ap¬ 
peal in this case to the Court of final resort of New 
York was forbidden by statute. This statute, on 
appeal attempted, was held valid and appeal dis- 
mist. (17). 


NOTE 16—In Re State Res., 16 Abb. N. C., 159 
(1884); 

In Re State Res., 37 Hun., 537 (1885). 


NOTE 17—In Re State Res., 102 N. Y., 734 (1886). 




56 


ALIENABLE 


NOT INALIENABLE. 

That the State has, if it coud, turnd over to the 
riparian, by both legislation and judicial decision,- 
all its interest, if any, in the water powers of its 
navigabl rivers cannot be douted. 

But claim is made that the right to use the 
water of a public river for power is not a property 
right, but a public right, a governmental right 
held in trust for all the pepl; and, hence, incapabl 
of alienation. It is claimd that the soveren grant 
fails on account of the want of power of the sov¬ 
eren to make the grant. 

How can changes in the art of using property 
or changes in the object of the use change the title 
to the property? 


PRIVATE BY NATURE. 

Rivers ar stampt as public by the fact that they 
ar navigabl. If navigabl, then public. If non- 
navigabl, then private. Navigation has been held 
a public right from the dawn of commercial his¬ 
tory. Whether fishing on a navigabl, non-tidal 
river is a private or public right has been, and is 
now, in this country, debatabl,—a bone of conten- 
tention. 

In Willow River Club vs. Wade, 100 Wis., 86, 
(1898), two of the Justices held that it was a pub¬ 
lic right, as incidental to navigation; and two held 
it to be a public right, irrespectiv of its relation to 
navigation. Navigation is held to be a public right, 
because in its nature it is usabl by, and of use to, 
all. In that respect the right of fishing is analo¬ 
gous. But the right to use the water for power is 
not, in its nature, fit for use by all. It is essentially 


ALIENABLE 


57 


private property. It can be enjoyd only by sole 
ownership. It is not analogous to the right of nav¬ 
igation, or the right of fishing. In fact, it is es¬ 
sentially inconsistent with navigation. Where 
there is, in fact, water power, there is, to that ex¬ 
tent, no navigation. 


NOT NEW 

Some may suppose that the view that the ripar¬ 
ian does not own the water power of the stream, 
but that it is, in some way, public property—of 
public use, is new. But this is a mistake. This 
view prevailed, for a time, many years ago in Eng¬ 
land, and the result was the decision of the King’s 
Bench in Williams vs. Morland (2 Barn. & Cress, 
391). At 393, Judge Bayley said, 

‘ ‘ My judgment in this case is founded on 
the nature of flowing water, and the manner 
in which an exclusive right to it is obtained. 
Flowing water is originally publici juris. So 
soon as it is appropriated by an individual, 
his right is coextensive with the beneficial 
use to which he appropriates it. Subject to 
that right all the rest of the water remains 
publici juris. The party who obtains a right 
to the exclusive enjoyment of the water does 
so in derogation of the primitive right of the 
public . 9 9 

But this rule proved unsound and in 1833, this 
case (Williams vs. Morland) was reverst by the 
same court in Mason vs. Hill, (5 Barn. & Ad .1). 
Therein Lord Chief Justice Denman said (19), 

‘ ‘ The proposition for which the plaintiff 
contends is, that the possessor of land, 
through which a natural stream runs, has a 
right to the advantage of that stream, flow¬ 
ing in its natural course, and to use it when 


58 


ALIENABLE 


he pleases, for any purposes of his own, not 
inconsistent with a similar right in the pro¬ 
prietors of the land above and below—that 
neither can any proprietor above diminish 
the quantity or injure the quality of wa¬ 
ter, which would otherwise descend, nor can 
any proprietor below throw back the water 
without his license or grant:—and that, 
whether the loss by diversion, of the general 
benefit of such a stream be or be not, such 
an injury in point of law, as to sustain an 
action without some special damage, yet, as 
soon as the proprietor of the land has ap¬ 
plied it to some purpose of utility, or is pre¬ 
vented from so doing by the diversion, he 
has a right of action against the person di¬ 
verting. 

The proposition of the defendants is, 
that the right to flowing water is publici 
juris, and that the first person who can get 
possession of the stream, and apply it to a 
useful purpose, has a good title to it against 
all the world, including the proprietor of the 
land below, who has no right of action 
against him, unless such proprietor has al¬ 
ready applied the stream to some useful 
purpose also, with which the diversion in- 
teres; and in default of his having done so, 
may altogether deprive him of the benefit of 
the water/' 

After discussing these claims, he says that the 
plaintiff's contention is correct. All the associate 
judges concurd. 

In 1851, the question came before the Court of 
Exchequer in Embrey vs. Owen (6 Exch. 353). 
Therein Baron Park, refering to Kent's Comment¬ 
aries and some American decisions, said (368), 


ALIENABLE 


59 


1 ‘ The right to have the stream to flow in 
its natural state without diminution or al¬ 
teration is an incident to the property in the 
land through which it passes; * * * that all 
may reasonably use it who have a right of 
access to it, that none can have any proper¬ 
ty in the water itself, except in the particu¬ 
lar portion which he may choose to abstract 
from the stream.’’ * * “But each pro¬ 

prietor of the adjacent land has the right to 
the usufruct of the stream which flows 
through it.” 

The rule announced in the latter cases has since 
that day been held to be the law of England. (18). 

If water power is in its nature public, then why 
does not a stream furnishing it, become public 
irrespectiv of navigability? We call a river fur¬ 
nishing navigation public because it meets the 
public use,to-wit, navigation. Then if water power 
is a public use, why is not a river furnishing water 
power public because it meets a public use, to-wit, 
water power. 

So the question woud seem to be not simply— 
Does the State or the riparian own the water pow¬ 
er of a public stream? but—Does the State or the 
riparian own the water power of all streams; and 
are all streams furnishing water power public? 


NOTE 18—Swindon Water Works vs. Wilts and 
Burks Canal, L. R. 7 E. & I, App. 
697 (1875); 

Sampson vs. Hodinot, 87 E. C. L. R. 
590, 610 (1857); 

Hindson vs. Ashby, 2 Ch. 1 (1896); 
Coulson & Forbes, pp. 113to 116, 
(1902). 

Hamelin vs. Bannerman, 1895, 11 R., 
368; 

Miner vs. Gilmour, 12 Moo. P. C., 131 
156-7, 14 Rep., 861. 



60 


ALIENABLE 


LEGISLATION AND DECISION. 

The suggestion that water power is, by nature, 
of public and not private use runs counter to the 
entire cours of legislation and judicial decision of 
this country. This appears plainly from every de¬ 
cision and every statute hereinbefore referd to and 
to some others hereinafter to be mentioned. 


The contention is that the use of water power 
is essentially a public use held by the State in trust 
for all the pepl and hence incapabl of alientation. 
If so, water power created by State authority, pri¬ 
marily for power, is inalienabl. Then it necessarily 
follows that water power incidental to works con¬ 
structed by State authority for another public pur¬ 
pose, as for water supply or navigation, must be 
inalienabl. The fact that its creation is the inci¬ 
dental result, and not the primary object, of the 
construction cannot render a water power private 
property and alienable, which, if it were the pri¬ 
mary object of the construction, woud be a soveren 
trust and hence inalienabl. 


The Eau Claire case (19) 
The Eau Claire Case, involves constructions and 
p r o p o sed constructions 
upon the Chippewa, a navigabl river. In Attorney 
General vs. Eau Claire, Chief Justice Ryan says 
(435), 


NOTE 19—Attorney General vs. Eau Claire, 37 
Wis., 400 (1875); 

State vs. Eau Claire, 40 Wis., 533 
(1876). 



ALIENABLE 


61 


“In considering this motion, we shall 
assume that the city possesses adequate 
power to establish water works. 

And that is so essentially a public muni¬ 
cipal purpose, that it is obvious that the 
city can take any legitimate power in aid of 
it. For that purpose, the legislature could 
unquestionably grant and the city take 
power to construct and maintain a dam, not 
obstructing the navigation of a public river, 
or violating other right, public or private. 
And the dam so authorized might well pro¬ 
duce an excess of power. Superflua non no- 
cent. In such case, as was frankly admitted 
on the argument, the surplus water need not 
run to waste. The legislature might well 
grant, and the city take, power to lease it. 
The power to construct and maintain the 
dam would still rest on the public municipal 
use; not on the disposition of the accidental 
excess. ’’ 

In State vs. Eau Claire, Chief Justice Ryan 
says (541), refering to the former decision, 

“Since that decision, and obviously in 
view of it, the legislature has amended the 
- statute of 1875 by ch. 231 of 1876. And the 
amendment so clearly and emphatically 
makes the power to construct the dam de¬ 
pendent on the power to construct water¬ 
works, and limits the power to lease the 
water-power to the excess not required for 
the water-works, as to place the power be¬ 
yond criticism in that respect. ’ ’ 


62 


ALIENABLE 


Act approvd August 18,1848, 
Fox River Case. declared title to the water 
powers created by the Fox 
and Wisconsin Improvement to be in the State. 
See reference to same hereinbefore on page 9. 

Section 1 of Chapter 283, Acts of 1850, pro¬ 
vides that, 

“The board of public works are hereby 
authorized and empowered in any future 
lettings of contracts for the improvement of 
the Fox and Wisconsin rivers, to consider 
bids made by any person or persons, for im¬ 
provements which will create a water pow¬ 
er, and when such person or persons offer 
to perform, or perform and maintain the 
work in consideration of the granting by 
the State to him or them, his or their as¬ 
signs, forever, the whole or a part of such 
water power 

Section 3 provides that, 

“When lettings have been made for the 
improvement of said rivers, whereby a wa¬ 
ter power is created, the Board of Public 
Works may relinquish to the person or per¬ 
sons who have performed the same, all or a 
part of such power as a consideration in full 
or in part, for such performance or main¬ 
tenance of such improvement, or for both: ’ ’ 


In Green Bay and Mississippi Canal Company 
vs. Kaukauna Water Power Company (20), Mr. 
Justice Lyon says (650-1-2), 


NOTE 20—Green Bay and Mississippi Canal Co. 

vs. Kaukauna Water Power Co., 

70 Wis., 635 (1888). 



ALIENABLE 


63 


“It requires no argument to demon¬ 
strate that the water-powers reserved to the 
state by sec. 16 of the act of 1848 were 
granted to the Fox & Wisconsin Improve¬ 
ment Company, by ch. 98, Laws of 1853; 
that the same passed to the plaintiff by the 
purchase on the foreclosure of the trust 
deed and mortgage, and the conveyance 
thereof to it by the trustees and mortgagee 
therein; and that, in its conveyance to the 
United States, the plaintiff reserved to it¬ 
self all of the surplus water-power created 
by the improvement. 

We conclude, therefore, that whatever 
rights the State took to the Kaukauna wa¬ 
ter-power by the act of 1848 (which is the 
absolute ownership of the whole thereof, if 
that is a valid act), is vested in the plain- 
tiff.” * * * 

“It was impossible to make the improve¬ 
ment in a proper manner, and to meet the 
requirements of navigation, without creat¬ 
ing some surplus water-power. But for the 
reasons above suggested such surplus was 
merely incidental to the improvement. 

In Attorney General vs. Eau Claire, 37 
Wis., 400, and again in State vs. Eau Claire, 
40 Wis., 533, it was held that a statute 
which authorized the city of Eau Claire to 
erect a dam and raise the waters of the 
Chippewa river for the purpose of creating 
public water-works in said city, and which 
granted to the city the right to lease the 
surplus water-power created by such im¬ 
provement, was a valid law. In the opinion 
of the court, prepared by Ryan, C. J., in 
each case, speaking of the power granted 


64 


ALIENABLE 


to the city to construct water-works, it is 
said: *’ 

Here follows in quotation paragraf hereinbe¬ 
fore quoted from the Eau Claire case. (Ante 61.) 

Respecting this matter, Mr. Justice Brown of 
the Federal Supreme Court says (21), 

“But if, in the erection of a public dam 
for a recognized public purpose, there is 
necessarily produced a surplus of water, 
which may properly be used for manufac¬ 
turing purposes, there is no sound reason 
why the State may not retain to itself the 
power of controlling or disposing of such 
water as an incident of its right to make 
such improvement. Indeed, it might become 
very necessary to retain the disposition of 
it in its own hands, in order to preserve at 
all times a sufficient supply for the purposes 
of navigation. If the riparian owners were 
allowed to tap the pond at different places, 
and draw off the water for their own use, 
serious consequences might arise, not only 
in connection with the public demand for 
the purposes of navigation, but between the 
riparian owners themselves as to the proper 
proportion each was entitled to draw—con¬ 
troversies which could only be avoided by 
the State reserving to itself the immediate 
supervision of the entire supply. As there 
is no need of the surplus running to waste, 
there was nothing objectionable in permit- 
tink the State to let out the use of it to pri¬ 
vate parties, and thus reimburse itself for 


NOTE 21—Kaukauna W. P. Co. vs. Green Bay 
M. C. Co., 142 U. S., 254 at 273 
(1891). 



ALIENABLE 


65 


the expense of the improvement. ’ ’ * * * 

“If the State could condemn this use of 
the water with the other property of the 
riparian owner it might raise a revenue 
from it sufficient to complete the work 
which might otherwise fail.” 


In a later case (22) Mr. Justice Shiras quotes 
this language of Mr. Justice Brown with approval. 
(77-78). 

Mr. Justice Shiras further says (79), 

“As previously stated, the State of Wis¬ 
consin, by its act of October 3, 1856, grant¬ 
ed and conveyed to the Fox and Wisconsin 
Improvement Company all the rights and 
interest of the State in the improvement, in¬ 
cluding the water powers created thereby, 
and, in case the sales of the granted lands 
should fail to realize a sum sufficient to com¬ 
plete the intended works of improvement 
and to pay the outstanding indebtedness of 
the State, and redeem the bonds issued by 
the Company, the State authorized the sale 
of the water powers created by the said im¬ 
provements. And, subsequently, by act of 
March 23, 1871, the State authorized the 
Green Bay and Mississippi Canal Company, 
which had become the owner of the entire 
improvement works, lands and water pow¬ 
ers by purchase at the foreclosure sale, to 
sell and dispose of the same to the United 
States. ’ ’ 


NOTE 22—Green Bay and Mississippi Canal Co. 

vs. Patten Paper Co., 172 U. S., 58 
(1898). 



66 


ALIENABLE 


He further says (80), 

“The substantial meaning of the trans¬ 
action was, that the United States granted 
to the Canal Company the right to continue 
in the possession and enjoyment of the wa¬ 
ter powers and the lots appurtenant thereto, 
subject to the rights and control of the Uni¬ 
ted States as owning and operating the pub¬ 
lic works, and that the United States were 
credited with the appraised value of the wa¬ 
ter powers and appurtenances and the arti¬ 
cles of personal property.” * * * 

“So far, therefore, as the water powers 
and appurtenant lots are regarded as prop¬ 
erty, it is plain that the title of the Canal 
Company thereto cannot be controverted; 
and we think it is equally plain that the 
mode and extent of the use and enjoyment 
of such property by the Canal Company fall 
within the sole control of the United 
States.” 

Niagara Case. The Niagara case holds the Niag- 
See note 16. ara water power to be incidental 
to, and to pass with, the sub¬ 
aqueous lands, which lands it holds to be the 
property of the State on account that the stream 
is international. But tho this water power is held 
to be the property of the State, it is held to be, not 
trust property held for public use but, private 
property of the State subject to lease for private 
manufacturing purposes. That it is so held and 
used is matter of common knowledge. 

The decision also sustains the private claims 
of some riparians to some of the power on the 
ground, not of riparian ownership but, of prescrip- 
tiv use. 


ALIENABLE 


67 


In that particular, the commission, by Hale, 
Commissioner, says (193), 

“As to the water power. The commis¬ 
sioners have not thought it necessary to de¬ 
cide the question which was so very thor¬ 
oughly and ably argued before them, as to 
whether a prescriptive right to the use of 
the waters of the Niagara River can be ob¬ 
tained as against the State. Differing some¬ 
what in their views as to the strict legal 
question, they have concurred in the belief 
that it was just and proper to make allow¬ 
ance for such water power where it is now 
in use, and has been for the period pre¬ 
scribed by the statute. They have, there¬ 
fore, practically decided this question in fa¬ 
vor of the claimants, and have allowed what 
in their judgment is the full value of the 
water power which has been used for the 
prescriptive period. ’ ’ 

On review of this case (37 Hun., 549), Judge 
Bradley said, 

“The right to the usufruct of the water 
(except for purposes of navigation) is pro¬ 
prietary, and that of the State is para¬ 
mount. * ’ 

(550) “Beyond the fact of navigation, 
the rights in the river are proprietary 
only.’ * 

This case relates to the Riv- 
Sault Case. (23.) er St. Mary, an international 
boundary. Herein the varia- 


NOTE 23—U. S. vs. Chandler-Dunbar W. P. Co., 
152 Fed. Rep., 25 (1907); 

U. S. vs. Chandler-Dunbar W. P. Co., 
209 U. S., 447 (1907); 

Act of Congress, No. 317, Approved 
March 3, 1909. 



68 


ALIENABLE 


tion in right, to the bed of the stream, on account 
of the international character of the stream as¬ 
serted in the Niagara case is denied by the Federal 
Supreme Court. Therein, Mr. Justice Holmes says 
( 453 ), 

“The fact that it is a boundary has not 
been held to make a difference. The riparian 
proprietors upon it own to the center.’ ’ 

No title to water power was directly involvd in 
this case. But soon after its determination, the 
United States, having failed to establish its claim 
of title to riparian lands and islands in the stream, 
declard that the riparian lands and islands shoud 
be taken, under Federal right of eminent domain, 
for Federal public use for navigation. 

Such taking necessarily involvd the wiping out 
of the riparian’s claim to water power. Nothing 
woud be left for it to be attacht to, or used upon, 
after the taking of the bank and the bed of the 
stream. Hence, the United States assumed that, on 
condemnation of the riparian and subaqueous 
property, the water power woud pass with it. The 
United States was the riparian owner on the lower 
section, about half, of the falls, not having parted 
with the title which it received from Virginia by 
deed of cession. The Ch. D. W. P. Co. was riparian 
on the upper section. 

In view of its ownership of part of the power, 
and the intended condemnation of the other part, 
the United States enacted that (sec. 12 of Public 
Act No. 317), 

“The right to the flow of water, and ri¬ 
parian, water power, and other rights, now 
or hereafter owned by the United States, in 
the Saint Mary’s River in Michigan shall be 
forever conserved for the benefit of the 
Government of the United States, primraily 


STARE DECISIS 


69 


for the purposes of navigation and incident¬ 
ally for the purpose of having the water 
power developed, either for the direct use 
of the United States, or by lease or other 
agreement, through the Secretary of War, 
who is hereby authorized to make such 
leases or agreements: Provided, That a just 
and reasonable compensation shall be paid 
for the use of all waters or water power 
now or hereafter owned in said Saint 
Mary’s River by the United States, whether 
utilized in said river or in any lateral canal, 
said compensation to be fixed by the Secre¬ 
tary of War: * * * It is intended that 

any excess of water in the Saint Mary’s 
River at Sault Sainte Marie over and above 
the amount now or hereafter required for 
the uses of navigation shall be leased for 
power purposes by the Secretary of War 
upon such terms and conditions as shall be 
best calculated in his judgment to insure the 
development thereof.” 

This legislation rests on the view that water 
power is private, not governmental, property; and 
that the United States became the owner of it by 
Virginia cession; and that same did not pass to 
Michigan on its admission to the Union, but where 
the riparian land has not been sold by the United 
States is still owned by the United States. Michi¬ 
gan was admitted into the Union on substantially 
the same basis as Wisconsin. 


STARE DECISIS. 

There is a maxim of the law, very well setld, 
of long standing, and very useful in the adminis¬ 
tration of justice. It is Stare decisis. 


70 


STARE DECISIS 


In the first instance, it may be true, as said by 
Justice Powell, that “ Nothing is law that is not 
reason.’’ But, after a decision has been rendered, 
the language of Sir Wm. Jones is more important. 
He says, respecting the maxim of Powell, “This 
is a maxim, in theory, excellent; but in practice 
dangerous; as many rules, true in the abstract, 
are false in the concrete.” 


“It is not always that Courts may freely 
inquire, in determining a case before them, 
What is the law! Sometimes investigation 
should stop when it is ascertained what has 
been decided upon the subject.” Harrow 
vs. Meyers, 29 Ind., 469, at p. 470. 

“That judge who * * * would overturn 
a rule which for years had settled the rights 
of property, should be regarded as the com¬ 
mon enemy of mankind, and as unworthy 
of the high trust that had been confided to 
him.” Welch vs. Sullivan, 8 Calif., 165, 188. 

“None but the strongest reasons would 
justify. ***** Fickleness in Courts is 
always to be depricated, but especially in 
materrs relating to titles to real estate.” 
Pioche vs. Paul, 22 Calif., 106, 109. 

“The error would have to be most pal¬ 
pable to justify this Court in overruling pre¬ 
vious decisions. The stability of judicial de¬ 
cisions is of the utmost consequence, as on 
them reposes the security of property; and 
they are not to be tampered with to suit the 


STARE DECISIS 


71 


views of different persons.’’ Reed vs. Owm- 
by, 44 Mo., 204, 206. 

‘ 1 This construction having become a rule 
of property, it should not be changed with¬ 
out an imperious necessity.” Taylor vs. 
French, 19 Vt., 49, 53. 

‘ 1 When a rule of property has been once 
deliberately adopted and declared, it ought 
not to be disturbed by the same Court, ex¬ 
cept for very cogent reasons. Otherwise the 
community would never be able to deal with 
safety and would be in a state of perplexed 
uncertainty as to the law.” Goodell vs. 
Jackson, 22 Johns, 693, 722. 

“But when a question has been well con¬ 
sidered and deliberately determined, what¬ 
ever might have been the views of the court 
before which the question is again brought, 
had it been res nova, it is not at liberty to 
disturb or unsettle such decision unless im¬ 
pelled bv the most cogent reasons.” Baker 
vs. Lorrillard, 4 N. Y., 257, 261. 

‘ ‘ When, as in this case, the decision has 
relation to large amounts of a species of 
property which assumes a value in the mar¬ 
ket, changes hands and is dealt with upon 
the confidence reposed in the correctness 
of the decision of the highest judicial tribu¬ 
nal in the State, nothing short of the most 
urgent necessity, to prevent injustice, or 
vindicate clear and obvious principles of 
law, would justify us in departing from it. ’ ’ 
Kearny vs. Buttles, 1 Oh. St., 362, 366. 


72 


STARE DECISIS 


“It would be better, no doubt, if all ju¬ 
dicial decisions were made upon correct log¬ 
ical principles, but that cannot be while in¬ 
tellectual infirmity exists, and experience 
has shown that it is less injurious to endure 
the evils of an unsound precedent than to 
change it when the result would cause con¬ 
fusion and disappoint and damage parties 
who have relied upon it as an established 
rule of law.” Paulson vs. Portland, 16 Oreg., 
450, 457. 


“That decision was rendered by judges 
occupying the same position as we do, and, 
while we do not indorse it, nor regard the 
reasons upon which it was predicated as 
satisfactory, yet we do not feel at liberty to 
depart from it in this particular case.” 
Corvallis vs. Stock, 12 Oreg., 391. 


“To overthrow decisions thus made, ex¬ 
cept upon the most cogent reasons, would be 
productive of the highest mischief.” Bel¬ 
lows vs. Parsons, 13 N. H., 256, 261. 

“Such rules become landmarks and ought 
to be preserved like ancient monuments or 
immemorial boundaries to land. ’’ Anderson 
vs. Jackson, 16 Johns., 382, 402. 

Fisher vs. Horicon I. & M. Co. involvd the con¬ 
sideration of the constitutionality of the mill dam 
law, so called. Justice Cole said, 

“The main question which we are in¬ 
vited to consider is the constitutionality of 
the mill dam law. This question we cannot 


STARE DECISIS 


73 




regard as open for investigation and discus¬ 
sion at the present time. It was fully and 
carefully considered * * * in the case of 
Newcome vs. Smith * * * and the con¬ 

stitutional^ of the law affirmed.” (10 Wis., 
351-2, I860.) 

“ Considerations of this nature, relating 
to questions of property acquired under the 
belief that a former decision was correct, 
cannot he disregarded when we are called 
upon to set such decision aside. The rule 
stare decisis has great force in such a state 
of things and emphatically applies/’ (354.) 

Babb vs. Mackey involvd the constitutionality 
of the mill dam law. Therein Justice Cole said, re- 
fering to the case of Fisher vs. Horicon I. & M. Co.: 

“We are earnestly pressed by counsel 
who denied that power, and the validity of 
our present law, to reconsider the decision 
of the former Supreme Court in the case of 
Newcome vs. Smith. * * * For reasons 

given in the opinion in that case, we have 
declined to depart from the doctrine laid 
down in Newcome vs. Smith, and conse¬ 
quently the power of the legislature to pass 
such laws is not now an open question/’ 
(10 Wis., 371-377, 1860.) 

In Franzini vs. Layland, 120 Wis., 72, 1903, 
Justice Marshall said (82), 

“There is no opportunity now for re¬ 
treat. The State has taken its position, and 
property rights upon all of our rivers have 
become vested with regard thereto, and the 
Supreme Judicial authority has many times 
affirmed that it possesses discretionary au- 


74 


FEDERAL QUESTION 


thority to part with its trust property to the 
extent mentioned.—That is in such ways as 
do not substantially affect the purposes of 
the trust.’ ’ 

This was said in relation to the well settled rule 
that the riparian owns to the middle thread of pub¬ 
lic navigable rivers. 


FEDERAL QUESTION. 

In the end the question will be for the Federal 
Supreme Court. This Court has determinedly sus¬ 
tained rules of property once established by a 
State court. Where property has been acquired, 
or contracts made, in view of, and on faith in, a 
setld rule established by a State court, the Federal 
Supreme Court wil not depart from such estab¬ 
lished rule, but will enforce the same notwith¬ 
standing subsequent variant State decisions. (24). 


NOTE 24—Hardin vs. Jordan, 140 U. S., 371, 384, 
389, 397, (riparian rights) (1891); 

Morgan vs. Curtenius, 61 U. S., 1 (ti¬ 
tle to lands) (1857); 

Gelpcke vs. Dubuque, 68 U. S., 175 
(municipal bonds) (1863); 

Muhlker vs. R. R., 197 U. S., 544 (emi- 
inent domain) (1905); 

Lee County vs. Rogers, 74 U. S., 181 
(county bonds) (1868); 

Douglas vs. Pike County, 101 U. S., 

677 (county bonds) (1879); 

Supervisors vs. Schenck, 72 U. S., 
772,785 (county bonds) (1866). 



RIGHT TO DAM 


75 


RIGHT TO DAM. 

It is said that, whatever may be the right of 
the riparian to the water power, he is not at lib¬ 
erty to build a dam in a public river without au¬ 
thority from the State, and that, hence, on giving 
such authority, the State shoud take a price for its 
consent. 

Grant for sake of the argument that the State 
has the power, which it has not, to prevent the 
riparian’s building a dam, not interfering with 
navigation, in a public stream, without a charter. 
Certainly it has no such right. Aesop of old tels 
the fable of the dog who coudn’t eat the hay but 
continued to lie on it so that the ox coudn’t eat it. 
The dog had the power but not the right. The 
right of the State is only to safe-guard the public 
interest of navigation, fishing and other such in¬ 
terests, if any. The only proper function of the 
dam charter is to certify that when the dam is bilt 
as provided, it wil not, in the opinion of the legis¬ 
lature, hinder navigation or fishing or other public 
use of the river, if any. If it woud so hinder, then 
the State cannot properly authorize it for, or with¬ 
out, a price. The State cannot, like Esau, sel its 
birthright. The attribute of soverenty is to serv 
the pepl, and it cannot sel that attribute. May the 
legislature say to the riparian,—Your proposed 
dam wil not hinder navigation if you pay this 
price, but if you wil not pay the price, then we 
judge that it wil hinder navigation? May the State 
falsify its judgment for a price? It shoud not ask 
a price of its citizens for what does not hurt the 
pepl. It shoud not hurt the pepl for a price. When 
the State authorizes a dam, injurious to the public, 
for a price, the voice may be the “ voice of Jacob, 
but the hands ar the hands of Esau” taking the 
price of his birth-right. 


76 


RIGHT TO DAM 


Suppose the riparian declines to be held up. 
The State cannot use the power any more than the 
dog coud eat the hay, and the ox not being fed can 
do no work. Then this force of nature servs no¬ 
body. 

Probably, on account of its effect on climatic 
conditions affecting the public health, the State 
may regulate the cutting of timber. But when the 
cutting does not injuriously affect the public, 
ought the State to put a price upon the cutting? 
Or when it does seriously affect the climate, may 
the State allow the injury to be done for a price? 
May the timber owner impair the climate for 
twenty-five cents a thousand? May the State 
quarantine against disease, and release from quar¬ 
antine for a price ? 


But it is said that a rental of twenty-five cents 
per hors-power is nominal. True it is. 

The water power is owned by the riparian or 
the State. If it is owned by the riparian, why 
shoud he be required to pay rent? If it is owned 
by the State, how can the State justify itself in 
renting it for the twelfth to the fortieth part of its 
rental value? 


The right of the State being only to preserve, 
for the public, its rights of navigation and fishing, 
may not the riparian bild such dam as wil not im¬ 
pair those rights without expres authority from 
the State? So it woud seem from decided cases 
(25). 


NOTE 25—Janesville vs. Carpenter, 77 Wis., 288 
(Rock) (1890); 



RIGHT TO DAM 


77 


Janesville vs. Carpenter involvd the validity of 
an act of the Wisconsin legislature forbidding the 
erection, by a riparian, of a bilding in the bed of a 
public navigabl river, which bilding did not inter¬ 
fere with navigation. The Court held the act un¬ 
constitutional and void as an unjustifiabl atempt 
to interfere with a property right of a riparian. 
In expressing the opinion of the Court, Justice 
Orton quoted from an opinion of Mr. Justice Chase 
of the Federal Supreme Court the following vigor¬ 
ous language: (303) 

“I cannot subscribe to the omnipotence 
of a state legislature, or that it is absolute 
and without control, although its authority 
should not be expressly restrained by the 
constitution or fundamental law of the 
state. * * * The nature and ends of the 

legislative power will limit the exercise 
of it. * * * There are certain vital 

principles in our free republican govern¬ 
ment which will determine and overrule an 
apparent and flagrant abuse of legislative 
power,—as to authorize manifest injustice 
by positive law, or to take away that secur¬ 
ity of personal liberty or private property 
for the protection whereof the government 
was established. An act of the legislature 


Stevens Point Boom Co. vs. Reilly, 46 
Wis., 237 (Wisconsin) (1879); 

Cohn vs. Wausau Boom Co., 47 Wis., 
314 (Wisconsin) (1879); 

Conn vs. Little Suamico, 74 Wis., 652 
(Little Suamico) (1889); 

Grand Rapids vs. Powers, 89 Mich., 
94, 102, 104, 111 (Grand) (1891); 
Chenango Bridge Co. vs. Paige, 83 N. 

Y., 179 (Chenango) (1880); 

Lewis Em. Dom., Sec. 70. 



78 


RIGHT TO DAM 


(for I cannot call it a law) contrary to the 
great first principles of the social compact 
cannot he considered a rightful exercise of 
legislative authority. ’ ’ 


Grand Rapids vs. Powers involvd the power of 
the legislature to authorize a city to establish a 
dock line acros the land of the riparian, and there¬ 
by exclude him from improving for water power, 
an unnavigabl part of the river. Therein Justice 
Morse said (p. 113), 

“The police power of the legislature of 
this State is not omnipotent. It cannot, un¬ 
der the guise of regulation, destroy property 
rights arbitrarily and without reason.’ ’ 


In Chenango Bridge Company vs. Paige (185), 
Justice Earl said, 

4 ‘ The Legislature, except under the pow¬ 
er of eminent domain, upon making compen¬ 
sation, can interfere with such streams only 
for the purposes of regulating, preserving 
and protecting the public easement. Further 
than that, it has no more power over these 
fresh water streams than over private 
property. It may make laws for regulating 
booms, dams and bridges only so far as is 
necessary to protect and preserve the public 
easement, and when it goes further, it in¬ 
vades private rights protected under the 
constitution. ’ ’ 


Lewis on Eminent Domain says, refering to 
Janesville vs. Carpenter (V. 1, Sec. 70), 

“A statute making it unlawful to drive 
piles or build piers, cribs or other structures 
in the bed of a private navigabl river with- 


RIGHT TO DAM 


79 


out regard to whether the same obstruct 
navigation was held invalid as depriving 
the riparian owners of their property with¬ 
out compensation and without due process 
of law . 9 9 

Mr. Justice Moody uses some language in 
Knoxville vs. Water Company (212 U. S. 1 at 18) 
(1909) which also seems pertinent here. 

‘ 4 The Courts ought not to bear the whole 
burden of saving property from confisca¬ 
tion, though they will not be found wanting 
where the proof is clear. The legislatures 
and subordinate bodies, to whom the legisla¬ 
tive power has been delegated, ought to do 
their part. Our social system rests largely 
upon the sanctity of private property, and 
that State or community which seeks to in¬ 
vade it will soon discover the error in the 
disaster which follows.” 


In this connection note the pertinent language 
of Justice Marshall in Rossmiller vs. State (114 
Wis., 169 (1902), at 188), 

‘ 4 Since the whole beneficial use of navi¬ 
gable lakes is unchangeably vested in the 
people, every one within the State having 
the right to enjoy the same so long as he 
does not invade the like right of another, 
without any interference by claim of para¬ 
mount right to the subject thereof, any law 
invading that individual possession is, in ef¬ 
fect, an invasion of the right to liberty and 
property without due process of law, con¬ 
trary to said fourteenth amendment. Any 
such invasion for the purpose of adding to 
the public revenues, exacting from a person, 


80 


INADEQUACY 


for the benefit of the state, compensation 
for the enjoyment of a right which belongs 
to him and which he has a right to enjoy 
without paying therefor, violates sec. 13, 
art. I, of the state constitution, prohibiting 
the taking of private property for public use 
without just compensation. 

It is a matter of keen regret that we are 
compelled to place the stamp of judicial 
condemnation upon the work of co-ordinate 
branches of the government. That is true 
in any case, but it is especially true here, 
since it turns to naught a strongly fortified 
supposed new discovery of a rich source 
for adding to the revenues of the state. ’ ’ 


INADEQUACY OF PRICE. 

It may be said that $1.25 per acre was an inade¬ 
quate price for riparian lands, and that hence the 
State may be justified in a cours which woud oth¬ 
erwise be unjustifiabl; that is, in withholding per¬ 
mission to the riparian to improve his water power. 

In 1848 the Wisconsin Constitutional Conven¬ 
tion urged Congress not only to reduce the price of 
Fox River lands and Rock River Canal lands from 
$2.50 per acre to $1.25 per acre, but also to refund 
to purchasers of Rock River Canal lands the excess 
over $1.25 per acre theretofore paid by them. (26). 


NOTE 26—R. S. 1858, p. 54-5; 

5 U. S. Stat., 245; 

5 U. S. Stat., 455, Sec. 9; 
9 U. S. Stat., 283. 



INADEQUACY 


81 


In this connection it shoud be remembered that, 
except as related to a few land grants, it was not 
the State which held the riparian lands and with 
them the water powers. The State never owned 
them. The State never was entitled to the price of 
them. If they had been held by the United States 
for a larger price than that for which they wer 
sold, snch policy might have delayed the sale and 
retarded the setlment of the State. If sale had been 
made for the larger price, the gain wond not hav 
been the gain of Wisconsin, except as one of the 
beneficiaries under the deed of Cession. Wiscon¬ 
sin got the gain by sale at a cheaper price thru 
encouragement of immigration. It may hav lost a 
small fraction of a high price. 

The western provinces of the Dominion of Can¬ 
ada are now outbidding the United States in price 
of argicultural lands, and drawing capital and la¬ 
bor and good, law-abiding and thrifty citizens 
from the United States. This fact presents to the 
United States a question of policy:—Shall we with¬ 
hold the public lands from sale and hence neces¬ 
sarily retard present development in hope for bet¬ 
ter conditions in the future ? That was the problem 
which Wisconsin faced in the fifties and sixties. 
Wisconsin then favored sale of public lands at the 
cheapest price in order that the resources of the 
State might be rapidly developd. Shall she now 
seek to take, by indirect means, what she was then 
eager that the United States shoud sel for her 
benefit? She has eaten her cake and waxed fat 
on it. Shall she now, like Jeshurun, kick? (Deut. 
32:15). 


82 


ULTRA VIRES 


ULTRA VIRES. 

There ar cases where the soveren grant fails 
on account of want of power of the soveren to 
make the grant. But the suggestion of such fail¬ 
ure, in any case, is an unwelcome one. Especially 
in the case where, if the suggestion is valid, it 
wrecks so many, so large, and so useful invest¬ 
ments, and necessarily arrests the development of 
so large a proportion of the enterprises of the day. 

To justify the assumption of title to these wa¬ 
ter powers by the State, the grounds of the as¬ 
sumption shoud not be doutful. They shoud be 
most plain, certain and reliabl. And however 
plain, certain and reliabl these grounds may be, 
the assumption must stil smack of bad faith. It 
must stil appear that such retaking is on the rea¬ 
soning that the original sale of the property by 
the United States to the riparian was a wrong; 
and that such wrong tends to justify another 
wrong to be done by now taking the property 
from the riparian. 

“Sublime philosophy! Benignant light! 

Which sees, in every pair of wrongs, a right. ’ 1 

In a case wherein the United States attacked 
the title of a riparian claiming under its patent, 
(27), Judge Severens, expressing the opinion of 
the Court, said (41), 

“It derogates from the dignity and char- 
character of the government to suppose 
that, formed as it is, to secure impartial jus¬ 
tice between individuals, it may neverthe¬ 
less in the conduct of its own affairs, with- 


NOTE 27—U. S. vs. Chandler-Dunbar W. P. Co., 
152 Fed. Bep., 25 (1907). 



ULTRA VIRES 


83 


out regard to the principles it represents, 
perpetrate npon its citizens wrongs which 
it would promptly condemn if practiced by 
one of them upon another. ’’ 

If this view of the nature of, and title to, water 
powers is right, then the foundations on which 
we hav heretofore rested title to property ar 
broken up. It then becomes a question of time and 
circumstance when the title to any kind of prop¬ 
erty may fail. Whether it is right that there shoud 
be private ownership of natural resources is a 
question with which this brief does not medl. 

When timber shal becum of public use and 
hence the State may take it; when farm land shal 
becum of public use and hence the State may take 
it; then if water power shal becum of public use, 
the State may take it. But until we reach the time 
when all natural resources shall be held to be sov- 
eren property, inalienabl by the State, it woud 
seem that water powers shoud continue to be held 
private property of the riparian, to be taken for 
public use only on making just compensation. 

Oshkosh, Wis., January, 1910. 


MOSES HOOPER. 


SYNOPTICAL INDEX 

RIPARIAN OWNERSHIP. 1—38 

Common Consent. 1 

Relinquishment by State. 1—17 

State Legislation... 2— 8 

State Decisions. 8—17 

New York Cases. 18—25 

Other State Decisions. 25—28 

Federal Decisions ... 28—38 

Tide Mills. 38 

Canadian Law . 38 

STATE CLAIM. 39—83 

Abstract. 39—51 

Incident to Bank. 52—55 

Not inalienable. 56—69 

Private by Nature. 56—57 

Not New. 57—60 

Eau Claire Case. 60—61 

Fox River Case. 62—66 

Niagara Case . 66—67 

Sault Case. 67—69 

Stare Decisis. 69—74 

Federal Question. 74 

Right to Dam . 75—80 

Inadequacy of Price ... 80—81 

Ultra Vires . 82—83 


H 250 84 


















































































‘ 















































a>«* - 

r * av *0, • 

A <!\», 

A 0° M ° * 

*bv* : 




^ V . 

\ ^ A* •J 

* v^ v l£ 

• A*?* o£ 


^ •'■*' .. ^ OM ° _ <>. 

<* V » - ' 

; W 

* '%., ‘WWW** '• v ^ 

^ -4 _ v v * <L V cJ* • 

4 av ^ ,r ° • * * A ^ * . • * 4 *Cr 4> 

<Jv t I 6 ~ K> (V 0 w O ^ ^ A V L / fl ^n 

■-. ’w *gg£ - a f >4mt. '♦*.< - "* 2il - 

o ^ '*% ‘^ilP*!*' „/' °*c. '-^jlv 0 *° ^ ‘.'^m*,‘ jr r , -;ws^v 0 

*.o* <J? <V *...* A°° V *•*’• A* °*. ‘«»» , A°° 

A, ^ vfc- **^,5** .a <v ^v a'®’ * 

v ♦ #\Jk7k • '&* A ♦ *(Cl[gg A,® >£* <V * ^ A 

: r®»: v^ 

* aVA 

;• # ^ • 







• i>A> 

.* ** ^ 


^ 0” t * *■ # * * "^o 

^ ^ ** 

^ • 


V 5 v *4V ° 

♦ *C? o 

* <L V <4* • 

<> *'7V* 9 ,0 V \d -o, A - /\ <v 

4^ V o 0 w ° ^ (V ^ w * 9 * <D <& o 0 M ° + ^ 

* •-*«* % <V 0° *Wo j* - 




o V 



■q5 ^ \° vV, ip VV 

• .. O A° % *•<’• y <V *»T^ A° V ••*’• *♦ 

s s Vo <0^ ^ t • o^ ^ -c/' ^ s • * ^ <\► t • o^ 

^ « *p A *^ »• A 6. „ • a a V » f? S) • 

« ^ ^ ♦.HxWTk 0 av ♦ ^wiT^.. ^ A ♦ 



vP^ .C, 


vP $ 


* -* 
* & % * 







A ■<■ *-„<’ ,o v o 

> c » “ »^ 0 ^ .K*, ^ 

". ^ 0 4 .' 



O # A 





O 

v^V < # 

<A ^TTi*' <G V ^ * 

& e 0 » o * <p Q^ , t • B * ^Q 

* rj-V C 

. ^ o* • *' •* 



, A°rf. 


°o 

’- *o v^ : 

> A °-* V 

" ’ * A* - O^ * O . o ’ . 0 *A •',-, 

V ^ aV *!*•» *> V’ »vv % o 

« *V> »V&f?A*» ^ A »‘ 

; A-V « ; * *W 

* W ^ 



• o 





-r O 

-p 
< 

° ! 

»/> TKOJ \\\w ^ 

o • 0 

^-° 9 4, 0 

„ v ¥ . 

• ^ ♦ 

: vpg^ 




« A> o * aV'''^* 

a ^ °. i/ ,? 2 C^' k v ^ ^ 

V r <A 4 ,G V '°**' S A <* ♦■ 

«G 0° H ° * *&*. cy , t» » ,, *^Q AV^ G ° N ° + *& 

*» • rJSN\ - «* *P G **&fff?7~> * O a'v’ • 


4 o. 

^ -^V <» 

fcK. V ^ o 

r o 



•A % 

• » 0 A 0 • ' ’ 

'♦ <0 »!,* 0 ^ ^> 

Ti A “^ .a y. ' t 

« ^ A * -AW/U * ^ 

: > ^ 




o *$+ * 

\ V4* ° 

° C? V ° 


*° • * 14 .A 4 G' y -O. * 

<<^ 6 0*% ^ «v o«-'*-»^ 

> /•sSSSW-. ^r. c° c v 

^o 0 


- ^ ^ l 

‘° i° ■%_ ^ 

« 0 ~> *• 

0 (V ^ ^ 




A -> 

** A^ *- .. 

\A..-.. V'"*‘^ 6 ’.‘'*/ 0 ^ 

\ % cFoOAWV* C * ~ O 



< o, 

■a?' vP •» 

,* aK CV % „ . _ 

0,0- ., U ^ A- o *.,.« .0- 

♦ **a av ♦ ' ^ V s * ^<v cv sy * 

\ : '&far. ^ a ^ 

rv . .. ^ v "* /\ °WWs -a 

jCt •% '«•** A <, *•>..0’ A* XV »o. , * A <i *• 

c u s*/r?7^y o j* ^ c° s*/r??L* o ^ * 6 -“ 4 


^ 4 < 




J&/!???-> 



\ A* ;*Va:* ^ ^ %. J> .•*>• ^ v'\^, -V 

^ .*Jaa* <v .<$■ «Wa«. A * .ysfefe-. 




• . 


ax :m^?: iz *^s^- "cr *^p^°* 

<*v ^ • ®®p. av x viofwv .^ V *V 'iSpr 0 ax 

\ <* a ■v •-?.*> ^ ** ♦N5&f** a* v *.%W* ❖' 

•-*-•*- ^ -d* t . l A*. **b .4> ,..., % ** s A° t(i '°*>* .< v 

V C *W8fcL r ^ d* . < U^c v % ^ r° i* ^ 4> 6 

r\v _ e3wZ<n, - ^ A o «, vfx 4 CjFRi^^ * * < 

° v •*»«• ^o* •nsmtOfr' '’by’ ° 

s <?A V<S "FiM^^o <0 v“ ~ SSsr'- A - - g3essr4 “ * 




<CL.' *C» «# fL/ITC^S. w o 4 V V*» 

,* / o n. * ^ 

" <r .. % *‘ , " o, a°° ^ 

v* J -•••-•• •> 

v* v • 


*.f*||>J iO-a *«£ 

•'■*• P,_ ♦oTo 9 .cr ^ % 


L**r * 


& % ° 


* - A>^ 

♦ AV ^ 


«;WV «v ^ '.saB? * a?' X. -oOT* A * v ”V '.!!§’,• a 

r o ,r o*** <\ > a4. v <#» • ^ ^ 

. » , ^ A \ • • * <0 'o. * * A _a + ^ «. 

yj/mz- °<> ^ ^ *•"'** ^ • ^ G 

Mm%>+ ^ -v * T, o •rfSSfc-I* r° *• 


^ '"of 


o. * 




^ \ ••J8K’ /’■% -!Wr- \«sp'.- •»• , 

•<StV ’ ’ ’ ^sat-V ’' V'.^-.V ■" V°!.V" • • ■’»'' 




^'C, 




v>. 


• 




* # 


”. tt 0 4 ; 


- W 


*5^ 


J- 0 ^ 


”- ^ 0 < 




^ ^ **<§ 
^o y :°y 


a. *y.y <v 


0 i0 -7\ ► A?- 

A.- o„ „o ^ 

.O' ►••»- ^> , • ••-, ”V .o^ .,... % 

4><C ' 


^ A v ^ 


\v °« w Ay " ® /1 • a 

/ . $t,^* o, -0^ n» * o, <*> «> 


i/ \ ^ v \ /*% i W9j J*x ^ 

o> '°.a* A <v .o^ \b 'o.a« a ^ «y 

°o o^ «•’■'*♦ <$> ##s t 

Jx(\lZ/y^> * .«, aS ^ < i sNs^k* Vv. . v *j&tfT?7p2?- ° V ^L, r, * * . 






'b V 




,5°^ 


■ •" 0 ■ ^ '•<’• a v ‘.To’ .o- ^ *»rTf’ a 1 ’ 'b. ♦: 

A) v ^ t • o*. ^ 6 s • • A ^ t # 0 V*v \v # # * 2 * 

V \/ :&:%/ :M: 


4^ ' 


a A^~ 

■5 J :< 


a? ”». '•yja^.’ \wms*’ & >, m|f.‘ 

j£ % V" * ■ *‘ o^ 0 «^• 1 ' * ^* \ *° * * * y ^• ■- •. %**"''' -^... \''°-‘ , \< v 




.4^, 




_ . “ 4°^ V 

A* °^. ‘•.o’ A° V 


.i 


^ ^ ''mm* ^ 4Vr ' *. .< 


-- -:»:* ;?r • 

v-SR* / x •; 

Pa ' • s 4 *G^ vO *o o * * A 


o A V% *■ 'J 
^ .. „, nx ^- % ? ^ «. 
O a» 

\ V ^ • « ° * J 

^ V yjtmk* %, ^ 




cV 




vAC,* 


* aV^ - 



^ ,C^ 


. r\ F * i » o 


0_ A^ V ' 0 « * ® ♦ (N^ . t 

■ -a 4T ^ , C »*-'■ 

: V . 0i ^«*. ++$ 

o lP v% ** • 4 CK • ’ 

’ -« 9 V'* 



































































































































































